Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04906535-0. Gary D. Hoff, Judge.
Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Richard Daniel Hernandez of two counts of first degree murder (Pen. Code, § 187, subd. (a)) in the shooting death of America Gonzalez and her unborn child. Hernandez was sentenced to two terms of life without the possibility of parole, plus 50 years for the personal use of a firearm enhancement. (§ 12022.53, subd. (d).)
All further statutory references are to the Penal Code unless otherwise indicated.
Hernandez contends that his conviction must be reversed because (1) the trial court improperly instructed the jury with accomplice instructions; (2) the investigating officer improperly opined as to the veracity of the primary prosecution witness; and (3) the trial court erred in admitting evidence that Hernandez had a propensity to commit acts of domestic violence pursuant to Evidence Code section 1109. Hernandez also argues, and the People concede, that the trial court erroneously imposed a parole revocation fine pursuant to section 1202.45 because he never will be eligible for parole. We agree with the last argument, but otherwise will affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL SUMMARY
America Gonzalez was brutally murdered during the night of September 21, 2004, or the early morning hours of September 22. Her body was discovered by Rhonda Bryson, a school bus driver for Sanger Unified School District, at approximately 6:30 on the morning of September 22. She was lying on the north side of the road at the intersection of Lincoln Avenue and Indianola Avenue. Bryson did not see anyone or any vehicles in the area.
Fresno County Deputy Sheriff Christopher Stearns was the first officer to arrive at the scene on the morning of September 22, 2004. He observed fresh drag marks that started from the north side of Lincoln Avenue and ended where the body was located, giving the appearance that the body was moved from one location to its final resting place. He also noticed broken glass where the drag marks started. The glass appeared to be from an automobile. He also observed some tire tracks and a wet spot.
Earlier that morning, at 1:24 a.m., Stearns received a report of a stolen Toyota Tercel that belonged to Daniel Archan, Jr. Archan reported that he had left his vehicle at a friend’s house, with the keys underneath the seat. The vehicle was stolen after 10:00 p.m. Stearns notified the detectives investigating the murder of Archan’s report. The parties stipulated that Archan’s vehicle was discovered by the California Highway Patrol in a rural area of Kings County. The vehicle had been burned. The parties also stipulated that the tire tracks located at the scene of the murder were made by Archan’s vehicle.
Dr. Venu Gopal, the senior forensic pathologist for the Fresno County Coroner’s Office, performed the autopsy on Gonzalez. He observed a shotgun wound to the chest area that perforated the left lung and the left atrium of the heart. The evidence indicated the shotgun was approximately three feet from the victim when she was shot. The second shotgun wound was in the middle of the chest area. The shotgun pellets damaged most of the heart and the fourth and fifth vertebrae in the back. Again, the shotgun was approximately three feet from her when she was shot. The third shotgun wound was to the outside of the left elbow and shattered the humerus. The wound suggested the shotgun was approximately six feet from her when she was shot. There were no injuries on the left side of the body, indicating that the arm was not next to or in line with the body when it was shot.
The victim also had abrasions to her left breast area and left thigh. There also were some scrape-type injuries on the top of her left foot, left big toe, and her back. The foot injuries were consistent with someone wedging his or her feet into the back of a seat, and the back injuries were consistent with someone being dragged while on his or her back. Finally, there was a scrape-type injury to the victim’s nose consistent with being struck in the nose with the barrel of a sawed-off shotgun.
Gonzalez was three to four months pregnant at the time of the murder. The cause of death was perforation of the heart caused by multiple shotgun wounds. The fetus died as a result of the death of the mother. The parties stipulated that DNA testing established there was a “99.999” percent chance that the father of the fetus was Robert Ruiz. The testing also established that neither Hernandez nor Archan was the father of the fetus.
The investigation quickly established the probable time of the murder. Shannon Strickland, who lived on Indianola Avenue, reported that on the night of September 21, at around 11:25 p.m., she heard a gunshot that sounded very close. The gunshot sounded like it came from the direction of the intersection of Indianola and Lincoln. Strickland did not say anything until the next morning because it was not unusual to hear gunshots at night in the country. The following morning Strickland saw the sheriff’s deputies investigating Gonzalez’s murder and reported hearing the gunshots.
The parties stipulated that Luz Calderon would testify that at approximately 11:30 p.m. on the night of September 21, 2004, she heard four gunshots. Her house was the closest residence to the intersection of Lincoln and Indianola. She looked out her window but did not see anyone. There was a vineyard between Calderon’s residence and the location where the victim was found.
The scene of the crime also provided relevant evidence. William O’Brien, a crime scene investigator with the Fresno County Sheriff’s Department, testified that two shoe tracks were observed at the scene. One shoe track appeared to bear the Nike logo. The second shoe track appeared to be an athletic shoe impression. A similar shoe track was found at the scene of Archan’s burned vehicle. The glass fragments found at the scene appeared to be from a vehicle window. O’Brien also investigated Archan’s burned vehicle, but did not recover any relevant evidence.
Teresa Cruz, an identification technician with the Fresno County Sheriff’s Department, photographed the scene where the vehicle was recovered on September 24. She observed and photographed shoe tracks and tire tracks. The shoe tracks were similar to the tracks found at the scene of the murder.
Flor, Gonzalez’s older sister, helped establish the events leading up to Gonzalez’s murder. Gonzalez was living with her mother at the time of her murder. Hernandez and Gonzalez had maintained a boyfriend/girlfriend relationship for approximately two years. The two had a daughter together. She also had a child fathered by Richard Ruiz, who had been her boyfriend before she began dating Hernandez.
We refer to Flor Gonzalez by her first name, not out of disrespect, but to avoid confusing her with the victim
Flor spent the afternoon of September 21 with Gonzalez and her children. Flor took Gonzalez home around 8:30 or 9:30 p.m. to pick up some clothes. The two intended to return to Flor’s apartment. Gonzalez went up to the apartment while Flor waited in the vehicle. Hernandez appeared a short while later and went up to the apartment. Flor exited her vehicle and followed Hernandez up to the apartment. Flor was at the apartment for about one hour and then left. Hernandez and Gonzalez, as well as other individuals, were still at the apartment when Flor left.
The primary witness for the prosecution was Archan. He first met Hernandez in January 2004. On September 21, 2004, between 1:00 and 2:00 p.m., Hernandez appeared at Archan’s house and asked for a ride to Kingsburg and then to Fresno. Archan could not leave immediately, so Hernandez left. Later that day, Archan picked up Hernandez in his small two-door Toyota Tercel. Hernandez was not ready, so he gave Archan some methamphetamine to smoke while he prepared to leave.
When Hernandez appeared, the two drove to Victor Licon’s house in Selma. While there, Hernandez and Archan drank beer and Archan smoked some marijuana. After leaving the Licon house, Hernandez and Archan drove to Kingsburg. They went to a “trailer house” that is surrounded by orchards and has a dirt road for a driveway. Hernandez borrowed some money from his brother while at the trailer house. Also present was a heavyset man.
We will refer to Victor and Andres Licon by their first names, not out of disrespect but to avoid any confusion to the reader.
After leaving the trailer house, Hernandez and Archan stopped at a convenience store and purchased some beer and potato chips. They then drove to Polo Farm Services. Hernandez went inside the store while Archan waited outside. It was about 2:45 p.m.
The two next drove to an apartment in Kingsburg. Hernandez and Archan smoked some more methamphetamine and then returned to Selma. They visited with some friends and drank some more beer. They next drove to another house and smoked some more methamphetamine. They left and returned to Victor’s house at approximately 6:00 or 7:00 p.m.
After a while, and some more beer, Hernandez stated he wanted to pick up his daughter from Gonzalez’s apartment. The two drove there, and Archan waited in the car while Hernandez went up to the apartment. Archan observed that Hernandez had been acting differently, like he was kind of mad, but more anxious. After going in and out of the apartment three or four times, Hernandez eventually came out with his daughter. The three drove to Hernandez’s mother’s house and left the baby with Hernandez’s mother. The two then returned to Gonzalez’s apartment after stopping at a store to buy more beer. Archan again waited in the car while Hernandez went up to the apartment. It was approximately 8:00 or 9:00 p.m.
Hernandez returned to the vehicle with Gonzalez. She sat in the rear passenger’s seat. Hernandez directed Archan to drive to Hernandez’s mother’s house. Hernandez and Gonzalez went inside while Archan remained with the vehicle. When Hernandez and Gonzalez returned to the vehicle, the three went to a store, where Hernandez purchased some gas and some more beer.
They next drove to the home of one of Hernandez’s friends. Archan and Hernandez went inside the house, smoked methamphetamine, and then returned to the car.
The three drove to the apartment of another one of Hernandez’s friends. Hernandez went inside the apartment alone. When Hernandez returned to the vehicle, the three headed for Hernandez’s uncle’s house. Hernandez suggested they stop to smoke some more methamphetamine before they got to his uncle’s house. Archan and Hernandez smoked more methamphetamine after they stopped. They were on the right side of the road next to some vineyards. Gonzalez remained in the back seat drinking a beer.
Hernandez stated he needed to relieve himself and got out of the car. Archan watched Hernandez get out of the car and pull out a shotgun. The shotgun had been hidden inside one of Hernandez’s pockets, or the side of his seat. The shotgun had two barrels.
Hernandez moved the passenger’s seat forward and pointed the shotgun at Gonzalez. Archan noticed that Hernandez was wearing white gloves. Hernandez started calling Gonzalez names. Archan tried to calm Hernandez. Hernandez pointed the gun at Archan and fired. The pellets went through the driver’s side door window. Archan got out of the car and again tried to calm Hernandez. Archan was so scared he urinated on the ground. Hernandez kept pointing the gun at Gonzalez and threatening to shoot her. Hernandez ordered her to get out of the car. When she refused, he tried to pull her out by her feet and hit her with the gun. She was pleading for her life.
Hernandez kept calling Gonzalez names and threatening to shoot her. She put her hands over her face and asked the Virgin of Guadalupe for help. She asked Archan for help, and Archan continued to try and calm Hernandez and urged him not to shoot anyone. Hernandez shot into the car. Archan ran around to the driver’s door and looked inside. He saw Gonzalez hunched over, rapidly moving her hands, and heard her make a retching noise.
Hernandez ordered Archan to come to the passenger’s side of the vehicle and drag Gonzalez out of the vehicle. To ensure compliance, Hernandez stated that he would shoot Archan if he did not do as he was told. As he was dragging her out of the vehicle by her ankles, Archan heard Hernandez “lock the gun back up” as if he was reloading. Archan dragged her out of the vehicle and towards the dirt. Archan tried to pull her out of the car slowly, but he heard her head hit the door sill and the roadway. When Archan stopped dragging, Hernandez ordered him to drag her farther away from the road. Hernandez ordered Archan to go back to the vehicle and start it up. Once inside the vehicle, Archan looked over at Hernandez and saw him pointing the shotgun straight down at Gonzalez. Archan heard two more shots from the shotgun.
Hernandez ran back to the vehicle and got inside. Archan attempted to drive away with the headlights off. As he did so, he heard a thumping sound. When he turned on his headlights, he realized he had driven off the roadway and his car was hitting grape vines. Archan followed directions given to him by Hernandez. Hernandez eventually told Archan to stop so he could fix the car. Hernandez was very nervous and was still holding the gun.
Hernandez told Archan to turn everything off and open the gas tank so he could burn the vehicle. Hernandez put a rag into the vehicle’s gas tank and lit it. The car did not catch on fire at first, but eventually it burned. The two walked away from the car and down a dirt path through a vineyard. They took off running when a car drove by on the roadway. Hernandez was leading and Archan was following.
At the end of the dirt path they came to some orchards. After traveling through the orchard, they came upon the trailer house they had been to earlier that day. Hernandez knocked on the windows and asked “Polo” to open the door. Hernandez eventually told the two occupants that he had killed someone. One of the men got a trash bag and told Hernandez and Archan to take off all of their clothes and put them in the bag. The two stripped down to their boxer shorts. The man took the shotgun and put it underneath the trailer house. They tried to burn the garbage bag that had the clothes in it, but apparently were not successful. One of the two men gave Hernandez and Archan a ride to Selma.
During the ride Hernandez told Archan that they were going to go back to Victor’s house where Archan was to call the police and report his car stolen. Hernandez told Archan not to tell anyone anything. The statement carried with it an implied threat.
The two were dropped off in Selma. From there they walked to a house. Hernandez knocked on the window and asked the occupant, whom he appeared to know, for help. They entered the house through a window and were given clothes to wear.
The occupant then drove Hernandez and Archan to Hernandez’s brother’s house. Hernandez told his brother that he had killed Gonzalez.
Hernandez’s brother gave the two a ride to Victor’s house. Hernandez told Victor that he and Archan had gotten into a fight with some men and the men stole Archan’s vehicle. Archan used the phone to call the police to report his vehicle had been stolen while parked outside of the Licon house at approximately 1:30 p.m. They all went to sleep after calling the police.
The next morning Archan did not feel right, so he smoked some marijuana and turned on the television. The first thing he saw on the television was a news report about the police investigation into Gonzalez’s murder. Victor then took Archan and Hernandez to their respective homes.
Later that day the police came to Archan’s house and asked him about his stolen vehicle. They took him to the Selma Police Department where Archan was questioned by the detective investigating Gonzalez’s murder. Archan told the detective his vehicle had been stolen. He stated he went to the Licon house and watched a movie, fell asleep, and when he woke up his vehicle was missing. The detective took Archan home after the interview.
Later that day, detectives came by Archan’s house and asked him what clothes he had been wearing that day. Archan lied again. Within the next two days someone from the police department obtained a DNA sample from Archan.
A few days later Archan called a pager number for the investigating detectives to ask them to come pick him up. Archan was scared; he was not eating, sleeping, or drinking. Hernandez kept driving by Archan’s house and kept calling, using an alias. Archan felt like if he did not talk with the police, something would happen to him. When the officers did not immediately respond, Archan called back several times. Detective Leo Lopez eventually returned Archan’s phone call, picked him up, and took him to the sheriff’s department, where Archan admitted he was with Hernandez when Hernandez killed Gonzalez.
Archan initially was facing the same charges as Hernandez, charges that would result in life in prison without the possibility of parole. Archan pled guilty to felony accessory to a crime and is serving a prison sentence. Three years was the maximum prison sentence to which Archan was exposed. Part of the plea agreement was that he would have to testify truthfully in the prosecution of Hernandez. He was likely to be released after he finished testifying.
Several witnesses corroborated various aspects of Archan’s testimony. Andres Licon has known Hernandez for five or six years. On the day of the murder, Andres first saw Hernandez at approximately 10:00 p.m. Andres and his brother Victor were watching a fight on television when Hernandez and Archan arrived in Archan’s vehicle and they drank a few beers. After a while, Andres and Victor went to sleep in their bedrooms. Around midnight Andres woke up when he heard Hernandez and Archan making loud noises. Archan was using the phone. Andres told them to be quiet and went back to sleep.
In the morning Hernandez and Archan were still at the residence. Victor gave Hernandez and Archan a ride home. Andres admitted that he told detectives he had seen Hernandez with a double-barrel shotgun in the past, but that was only something he had heard.
Detective Joseph Amador testified that he had interviewed Andres the day after the murder. Andres told him that Hernandez and Archan arrived at his house about 10:00 p.m., left a while later, and then returned between midnight and 1:00 a.m. At that time, Andres heard Hernandez tell Archan that Archan should report to the police that his car had been stolen. At the following interview, Andres stated that he was aware that Hernandez owned a double- barrel shotgun that was about three feet long.
Victor confirmed that Hernandez and Archan came to his house on the night of September 21 to drink. Hernandez and Archan left after a while. Victor fell asleep while they were gone. He woke up later that night when Archan asked to use the phone because his car had been stolen. Archan appeared very tired. Hernandez appeared “kind of jumpy.” Victor did not hear any arguments that night, nor did he see Gonzalez.
Armando Sustaita confirmed that he lived at the trailer house described by Archan, and that Hernandez was at his house twice on September 21, once in the afternoon with another individual he could not identify and once later in the evening. On the first occasion Hernandez asked to borrow some money. On the second visit Hernandez asked for a ride. Sustaita refused to give Hernandez a ride because he did not want to leave his wife alone at night. But another individual, Paul Garcia, drove Hernandez somewhere. Sustaita described Hernandez as dressed in pants and a shirt and acting normally.
Detective John Ciaccio interviewed Sustaita on September 27. Sustaita denied anyone had come to his house on either September 21 or 22. In a second interview, Sustaita admitted that on the night of the September 21, at approximately 11:00 p.m., he heard noises outside his trailer house. When he investigated, he found Hernandez standing outside of his trailer house wearing only boxer shorts. It appeared that Hernandez may have been high on drugs. Hernandez did not leave anything for safe keeping with Sustaita.
At the time of the first interview (six days after the murder), Ciaccio checked the burn barrel. While there was a lot of burned debris in the barrel, Ciaccio could not determine the source of any of the ashes. Similarly, Ciaccio looked under the trailer house and did not find any weapons.
Garcia is related to Hernandez. He did not know Archan prior to Gonzalez’s murder. Garcia recalled Hernandez coming to Sustaita’s house in the early morning hours of September 22. Hernandez asked for a ride and Garcia took him to Selma. Archan was with Hernandez at the time. Both individuals were fully clothed. Hernandez was acting normally that night. Garcia stated nothing was burned that night in the burn barrel.
Lopez interviewed Garcia on September 27. Garcia initially denied seeing Hernandez on the night of the murder but, after being scolded by his mother, admitted Hernandez came to Sustaita’s house that night and Garcia gave him and another individual a ride to Kingsburg. At the time, Garcia was not able to describe what clothes Hernandez was wearing. Garcia admitted that it was unusual for Hernandez to show up at that time of the night, and he thought something was going on but did not know what that might be.
The prosecution also presented propensity evidence. Flor observed three incidents of violence involving Hernandez and Gonzalez. Two days before she was murdered, Gonzalez called Flor and asked Flor to pick her up from Hernandez’s apartment. Flor drove to Hernandez’s apartment. When Gonzalez walked towards Flor’s vehicle, Hernandez followed her and pulled her by the hair, preventing her from entering Flor’s vehicle. Hernandez eventually let go, and Gonzalez entered Flor’s vehicle and the two drove away.
On another occasion, Flor and Gonzalez were at a local bank when Flor saw Hernandez drive by. Flor told Gonzalez to roll up the vehicle’s windows and lock the door while Flor left to use the automated teller machine. Hernandez parked his vehicle behind Flor’s vehicle, got out of his car, and started hitting the vehicle window while ordering Gonzalez to roll down the window. Flor heard a sound like someone hitting another person. When Flor turned around, she saw the vehicle’s window rolled down, Gonzalez holding her face, and a red mark on her face.
Flor witnessed a third incident of domestic violence between Hernandez and Gonzalez that occurred on approximately July 16. Gonzalez asked Flor to pick her up at her apartment. Flor drove to the apartment complex. As she was driving into the complex parking lot, she saw Hernandez and Gonzalez in Hernandez’s vehicle. Hernandez was pulling Gonzalez’s hair and hitting her. Flor honked her horn to get Hernandez’s attention, and then she called the police to report the incident.
Approximately six to eight months before the murder, Ronald Bernell, Gonzalez’s good friend, observed Hernandez pull Gonzalez into his vehicle by her hair.
Bernell also observed a second instance of domestic violence. Gonzalez was an occupant in Bernell’s vehicle when Bernell drove to the house where Hernandez was located. Hernandez calmly walked up to the vehicle and grabbed Gonzalez by the hair and pulled her out of Bernell’s vehicle and into his vehicle. When Hernandez ran back into the house, Gonzalez got out of Hernandez’s vehicle and got into Bernell’s vehicle. Bernell drove away with her. Before he drove away, however, Bernell saw Hernandez run out of the house carrying a bag. Bernell saw what appeared to be a shotgun with a sawed-off grip inside the bag.
Robert Ruiz testified that he had a relationship with Gonzalez before her relationship with Hernandez, and also had sexual relations with her while she was involved with Hernandez. Luis Hernandez, Hernandez’s brother, testified that before Gonzalez was murdered, he had told Hernandez that Ruiz was the father of Gonzalez’s unborn child. Hernandez appeared shocked by the information, but told Luis that he did not care; the baby was still his.
All further references to “Ruiz” are to Robert Ruiz, not Richard Ruiz.
William Morales was incarcerated in the cell adjacent to Hernandez’s cell in the isolation unit of the Fresno County Jail. While incarcerated, Morales had several conversations with Hernandez. During these conversations, Hernandez admitted shooting Gonzalez in the heart. Morales was facing several charges arising from a single incident before he agreed to testify for the prosecution. In exchange for testifying truthfully in court, Morales had several charges dropped and he agreed to admit to violating section 459. As a result of the agreement, the maximum period of confinement to which Morales was exposed was reduced from 14 years to eight years in prison, although he may be sentenced to less than eight years.
Kevin Hansen shared a cell with Hernandez in the Fresno County Jail for a period of time. Initially, Hernandez denied he was responsible for Gonzalez’s murder. After his preliminary hearing, Hernandez indicated that things were not working out for him as he thought they would, indicating that things went poorly at the preliminary hearing. Eventually, Hernandez broke down and admitted he killed Gonzalez because she was pregnant with Ruiz’s child.
In exchange for his testimony, Hansen was to have a 16-month prison sentence recalled and, after he testified, he would be sentenced to three years’ probation with credit for time already spent in custody.
Hernandez presented two experts in his defense. Dr. Robert Lawrence, a pathologist, generally agreed with Gopal’s autopsy results. He opined the wound to the arm was caused by a gunshot no more than six feet from Gonzalez, while the shotgun was probably one and one-half feet from her when the two wounds to the chest were inflicted.
Lawrence agreed the injury to the arm was caused when the shooter was outside of the vehicle and Gonzalez inside the vehicle. He admitted that she could have been in the right rear passenger’s seat when shot, and the shooter could have been outside of the vehicle on the passenger’s side, although he felt such a scenario was unlikely. His opinion was based on his commonsense understanding of how people react when they have a gun pointed at them, although he admitted it was impossible to predict how someone would react in such a stressful situation.
Gary Cortner testified as a forensic expert for Hernandez. Cortner attempted to simulate the various locations where Gonzalez could have been while inside the car and where the shooter could have been located. From his investigation, he did not think it was likely that the bruising on Gonzalez’s foot was caused by her hooking her feet underneath the seat in front of her to avoid being dragged out of the vehicle. Ultimately, Cortner testified that Gonzalez could have been sitting in the rear passenger’s seat and the shooter standing outside the passenger’s door when she was shot in the arm, just as Archan testified. Cortner, however, testified that the injuries also could have occurred with Gonzalez and the shooter in different positions.
In addition to the expert testimony, Hernandez also attempted to establish his alibi defense. Hernandez’s brother, Tony Vargas, testified that he did not see Hernandez on the night of the murder, nor did he give him any clothes or a ride to the Licon house. Vargas admitted he saw Hernandez and Archan in Archan’s vehicle earlier that day at the trailer house where Sustaita lived.
Lydia Velasquez has had a relationship with Vargas for approximately 11 years. She lives in a house in Selma with her children, but not Vargas. Hernandez came by the house about 8:00 p.m. the evening of the murder, but Vargas was not at the house. Vargas arrived at the house a little later that evening, after Hernandez left, and spent the rest of the night there. Hernandez did not return.
Defense investigator Edward Mulvihill attempted to interview Morales after learning that Morales might be a witness in this case. Morales would not tell Mulvihill what he had told the police, but he did tell Mulvihill that he was a good friend of Ruiz’s, the individual who fathered the child Gonzalez was carrying when she was murdered. Mulvihill did not attempt to confirm with Ruiz that he was friends with Morales because, for at least part of the time, Ruiz was incarcerated in state prison.
Jorge Archan testified as part of the prosecution’s evidence in rebuttal. He spoke with his brother, Daniel, shortly after Gonzalez was murdered. Daniel told Jorge that he put his clothes in a bag and they were burned when his vehicle was burned. Daniel said Hernandez also was present at the time these events took place, and that Hernandez was the one who set Daniel’s vehicle on fire.
The information charged Hernandez with two counts of first degree murder, in violation of section 187, subdivision (a). The information also alleged that Hernandez was armed with a firearm (§ 12022, subd. (a)(1)) and personally discharged a firearm, causing the death of both Gonzalez and her unborn child. (§ 12022.53, subd. (d).) Finally, the information included the special circumstance allegation for multiple murders. (§ 190.2, subd (a)(3).) The jury found Hernandez guilty of two counts of first degree murder and also found that he personally discharged a weapon, causing the death of Gonzalez and her unborn child. The jury also found true the special circumstance allegation of multiple murders. Hernandez was sentenced to two terms of life without the possibility of parole, plus 50 years for the personal use of the firearm.
DISCUSSION
I. Accomplice Instruction
An accomplice is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) “A conviction cannot 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.” (Ibid.)
Defense counsel initially took the position at trial that Archan was an accomplice as a matter of law, and therefore the jury must be instructed with Judicial Council of California Jury Instructions (2006) CALCRIM No. 335, accomplice testimony: no dispute whether witness is accomplice. The prosecution argued the jury should be instructed with CALCRIM No. 334, accomplice testimony must be corroborated: dispute whether witness is accomplice. Both instructions inform the jury that accomplice testimony must be corroborated. CALCRIM No. 334 allows the jury to decide if the witness is an accomplice, while CALCRIM No. 335 instructs the jury that the witness is an accomplice as a matter of law.
The trial court concluded there was a factual dispute as to whether Archan was an accomplice and decided to instruct the jury with CALCRIM No. 334. The parties and the trial court agreed on the final wording for the instruction, and defense counsel withdrew his request for CALCRIM No. 335.
Hernandez argues that Archan was an accomplice as a matter of law, and therefore the trial court should have instructed the jury with CALCRIM No. 335.
At trial, the prosecution argued that Archan was not an accomplice as a matter of law because everything he did during the course of the murder was compelled by threats by Hernandez. Hernandez asserts Archan’s testimony established that he aided and abetted the murder of Gonzalez. According to Hernandez, Archan’s claims that he acted under duress do not absolve him of criminal liability as an aider and abettor because the defense of duress does not apply to crimes punishable by death, such as the multiple murder of Gonzalez and her unborn child.
To support his argument, Hernandez cites section 26, which provides in relevant part that all persons are capable of committing a crime, except persons who commit an act “under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.” (Id., par. Six.) Section 26 specifically states, however, that this exception does not apply to crimes punishable by death.
The Supreme Court recently held that section 26 precludes a duress defense to any form of murder. (People v. Anderson (2002) 28 Cal.4th 767, 772-780.) Thus, one cannot claim that the act of murder was compelled out of fear for one’s own life. In People v. Vieira (2005) 35 Cal.4th 264, 290, the Supreme Court stated that duress could not negate “the requisite intent for one charged with aiding and abetting a first degree murder. [Citation.]” The rationale for both of these holdings is clear: It is better to lose one’s own life than to take another’s life.
Accordingly, if Archan aided and abetted in the murder, then any claim that his participation was compelled by Hernandez’s threats would not lessen his culpability. The initial question, therefore, is whether Archan aided and abetted the murder. If he did so, Archan is a principal (§ 31) and liable to prosecution for the same offense. (People v. Horton (1995) 11 Cal.4th 1068, 1113.)
To be liable for a crime under a theory that the defendant aided and abetted the perpetrator, four factors must be present: (1) the perpetrator committed the crime; (2) the defendant knew the perpetrator intended to commit the crime; (3) before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; and (4) the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. (CALCRIM No. 401; People v. Stallworth (2008) 164 Cal.App.4th 1079, 1103.)
If we consider only Archan’s testimony, it is clear that Hernandez, the perpetrator, murdered Gonzalez, and that Archan’s act of removing her from the vehicle assisted Hernandez in committing the murder. Therefore, elements one and four of the above test were met. It also appears that when Hernandez ordered Archan to remove Gonzalez from the vehicle, Archan knew the order was given because Hernandez wanted to kill Gonzalez, although that conclusion could be subject to debate. Archan did not testify that he knew this was Hernandez’s intent, although the jury logically could conclude that Archan must have known of Hernandez’s intent. Therefore, element two, arguably, is present as a matter of law.
What precluded the trial court from concluding that Archan aided and abetted the crime, however, is element three. There is no evidence that Archan intended to aid and abet Hernandez in murdering Gonzalez when he removed her from the vehicle. The jury could have inferred that Archan possessed the requisite mental state when he removed Gonzalez from the vehicle, but that is not the only logical conclusion the jury could have reached. The jury also could have inferred that Archan intended to coax Hernandez into the vehicle and drive away before Hernandez could shoot Gonzalez again, thus preventing the murder. Indeed, from Archan’s testimony, the only conclusion one could reach is that he did not want Hernandez to murder Gonzalez. Thus, while Archan may have removed Gonzalez from the vehicle because he feared that a refusal to do so would cause Hernandez to turn the shotgun on him, it does not necessarily follow as a matter of law that Archan intended to aid and abet Hernandez in the murder of Gonzalez. There is enough uncertainty in the testimony that the trial court could not determine, as a matter of law, that Archan aided and abetted the murder. Therefore, the trial court properly instructed the jury on the accomplice liability and the need for corroboration.
Even if we assume, arguendo, that Archan aided and abetted the murder as a matter of law, reversal would not be required. “A trial court’s failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] ‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 370.) Hernandez urges us to look at all the evidence and determine if the alleged error created a miscarriage of justice (Cal. Const., art. VI, § 13), i.e., whether it is reasonably probable the result would have been more favorable to Hernandez if the error had not been made. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)
The judgment withstands review under either test. The evidence corroborating Archan’s testimony not only was sufficient, it was substantial. Witnesses established, and Hernandez admitted in his statement to the police, that Gonzalez was with Hernandez and Archan in Archan’s vehicle shortly before the murder. Hernandez told the investigating officers in his statement, which was admitted into evidence, that after picking up Gonzalez the three went to the Licon house, where Gonzalez walked away after arguing with Hernandez. Hernandez also told police that Archan would not commit such a crime. The question, therefore, was who was at the scene of the murder.
Andres told officers that although Hernandez and Archan first arrived around 10:00 p.m., they left a short while later and did not return until around 1:00 a.m., thus becoming the first of many witnesses to contradict Hernandez’s statement to the police and corroborating Archan’s testimony. Victor confirmed the information his brother gave to the police. Sustaita confirmed that Hernandez had been to his trailer house twice on the day of the murder, once late at night. He also told police that Hernandez was wearing only boxer shorts at the second visit. Garcia testified that Hernandez and Archan came to his trailer house late the night of the murder and that he gave them a ride into Selma. Witnesses also testified to seeing Hernandez with a shotgun on more than one occasion. Finally, the propensity evidence confirmed Hernandez’s propensity to commit acts of violence against Gonzalez.
The physical evidence also confirmed Archan’s testimony. There were two sets of shoe tracks at the scene, one set that was similar to the shoes Archan was wearing on the night of the murder and one set similar to the shoes Hernandez was wearing. The parties stipulated that Archan’s vehicle was at the scene and was burned later that night. Shoe tracks similar to those at the scene of the murder also were found at the scene where the vehicle was recovered. The drag marks, urine, and glass fragments found at the scene of the murder also corroborated Archan’s testimony.
While Archan’s testimony provided the complete picture of the murder, virtually all of the independent evidence supported that testimony. Also, Hernandez was the only person who had a motive to kill Gonzalez. She was pregnant with another man’s child. There was no testimony to establish that Archan had any motive to kill Gonzalez. After the murder, Hernandez and Archan ended up at the trailer house where Hernandez’s relative was residing (Garcia) and obtained a ride from him. This evidence points overwhelmingly to the guilt of only one person -- Hernandez.
Finally, we note the trial court instructed the jury that accomplice testimony must be corroborated. The error asserted by Hernandez occurred because the trial court did not instruct the jury that Archan was an accomplice as a matter of law. The jury may have concluded, however, that Archan was an accomplice and evaluated his testimony accordingly. When all of these factors are considered, it is not reasonably probable that Hernandez would have obtained a better result had the trial court instructed the jury that, as a matter of law, Archan was an accomplice in Gonzalez’s murder. Any error, therefore, was harmless.
II. Detective’s Vouching for a Witness
Archan was a key prosecution witness. In his first interview, Archan told investigators that neither he nor Hernandez was involved in Gonzalez’s murder. Since Archan’s next statement accused Hernandez of the murder, Archan’s credibility, or more precisely the lack thereof, was a key component of Hernandez’s defense.
Defense counsel called Ciaccio as a witness in an attempt to impeach Archan’s credibility by pointing out differences between Archan’s trial testimony and the statements he gave to the investigating officers.
The prosecutor reviewed other portions of Archan’s statement to the police in an attempt to rehabilitate Archan. Then he began questioning Ciaccio about Archan’s body language during the first interview. Ciaccio described Archan as very nervous, shaking his leg, and having a dry mouth. Archan also was pausing after the questions, as if he was trying to decide how to answer them. During the second interview, Archan was more talkative, consistent, and very sure of what he was saying.
The following colloquy then took place between the prosecution and Ciaccio:
“Q: All right. Would you say that in the previous interviews that you had with Mr. Archan -- how many people have you interviewed as part of your career?
“A: Hundreds.
“Q: Would you say Mr. Archan was a good liar?
“A: No.
“Q: All right. Did you believe when you were listening to his testimony on when he turned himself in that he was lying?
“A: No, I didn’t.”
The prosecutor went on to contrast the demeanor of Archan to that of Hernandez during their respective interviews. Archan also directed Ciaccio to the various locations Archan described in his statement.
On redirect, defense counsel asked Ciaccio if the hesitation in answering the question exhibited by Archan in the initial interview was the same type of hesitation exhibited by Amador while testifying in court.
“A: I think [Detective] Amador was doing what we all do, and that’s go through all our reports by memory and try to remember what was done. I think Mr. Archan was trying to find lies to tell us initially to get out of what he was in.
“Q: So in other words, they both hesitated and you’re saying for different motives that you inferred?
“A: Absolutely.”
On recross, the prosecutor focused on the timeframes for the statements at issue.
“Q: As to Detective Amador when he testified, he testified about a year-and-a-half after this event allegedly occurred, correct?
“A: Correct.
“Q: When did Mr. Archan testify on the 22nd when he was lying? About how long was that from the time the alleged homicide happened?
“A: Ten hours.”
The trial court corrected the prosecutor’s misstatement and confirmed the question was referring to Archan’s statement to the police, not to his trial testimony.
Hernandez now argues that the references to Archan lying during the first statement to the police, and being truthful during the second statement to the police, constituted impermissible vouching for a witness by Ciaccio. Because defense counsel did not object to the questions or answers, Hernandez frames his argument in terms of ineffective assistance of counsel.
A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541 (Dennis).)
“If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation .…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623 (Cudjo).)
“Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]” (Dennis, supra, 17 Cal.4th at pp. 540-541.)
The issue is whether counsel’s failure to object to the questions and answers regarding Archan’s veracity fell below an objective standard of reasonableness under prevailing professional norms.
The law is well settled that no witness, either lay or expert, may vouch for the credibility of a testifying witness. (People v. Melton (1988) 44 Cal.3d 713, 744; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.) Such testimony is nothing more than an opinion of the veracity of another witness. Admission of opinion testimony is limited by statute. A lay witness may testify in the form of an opinion that is rationally based on the perception of the witness and will be helpful to a clear understanding of his or her testimony. (Evid. Code, § 800.) An expert, on the other hand, may testify in the form of an opinion if the subject of his opinion “is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact,” and the opinion is “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness .…” (Id., § 801, subds. (a), (b).)
A witness may testify as to another witness’s reputation in the community for being truthful or untruthful. (Evid. Code, §§ 780, subd. (e), 786.)
Ciaccio’s testimony is not admissible under either section. The testimony related to Archan’s veracity was not helpful to a clear understanding of Ciaccio’s testimony. His admissible testimony was limited to what he observed when Archan was interviewed. Whether Archan was, in Ciaccio’s opinion, being truthful did not add to the clarity of his testimony. Instead, the only purpose for the testimony was an attempt to convince the jury that Archan was being truthful. The testimony was not admissible, therefore, as a lay witness opinion.
The testimony also was not admissible as expert testimony. In this case, as in many cases, the issue was whether Archan was telling the truth or fabricating his testimony. The jury is charged in such situations to make that determination based on all of the evidence presented at trial. More importantly, the jury is as qualified as Ciaccio to make that determination. In the words of Evidence Code section 801, Ciaccio’s testimony was not related to a subject that was sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.
Nor was Ciaccio qualified to testify as an expert on Archan’s veracity. An expert witness is defined as a person who “has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) While Ciaccio may have had sufficient expertise to testify on numerous police-related topics, there is nothing in his testimony that would establish he had special knowledge, skill, experience, training, or education in the field of determining whether an individual was being truthful. Simply being a police officer and conducting numerous investigations or interviews does not qualify one as an expert in divining the truth.
Simply because defense counsel could have objected to the questions and answers, however, does not establish ineffective assistance of counsel. Since defense counsel was not asked to explain his failure to object, and did not volunteer his reasons for failing to object, we must reject the claim of ineffective assistance of counsel unless there is no possible explanation for the failure to object. (Cudjo, supra, 6 Cal.4th at p. 623.)
Defense counsel’s redirect examination of Ciaccio explains why he did not object. When the prosecutor opened the door by asking Ciaccio about Archan’s demeanor and veracity, defense counsel was able to point out that Archan’s delay in answering questions that Ciaccio found to indicate untruthfulness was similar to Amador’s delay in answering questions. The logical inference defense counsel wanted the jury to draw, therefore, was that if Archan was being untruthful, then Amador also was being untruthful. Since Amador provided important testimony for the prosecution, defense counsel may have determined that the ability to attack Amador’s credibility was a better tactical choice than objecting to the veracity questions. Since there is a logical and reasonable explanation for the failure to object, we must reject the claim of ineffective assistance of counsel.
Even if we conclude that an objection should have been made, we would not find ineffective assistance of counsel because of the overwhelming evidence of Hernandez’s guilt. There is not a reasonable probability that Hernandez would have received a better outcome if an objection had been made and the testimony not included in the record.
III. Propensity Evidence
Over Hernandez’s objection, the trial court permitted two witnesses, Flor and Bernell, to testify to five incidents of domestic violence pursuant to the provisions of Evidence Code section 1109. Each of the incidents, described in detail in our summary of the testimony, involved Hernandez pulling Gonzalez’s hair in an apparent attempt to control her movements, and on some occasions hitting her with his hand.
Hernandez argues the trial court erred in permitting this testimony for various reasons. First, he contends the evidence should have been excluded because pulling one’s hair is not an act of domestic violence. Evidence Code section 1109, subdivision (d)(3) adopts the definition of domestic violence found in Penal Code section 13700. As relevant here, Penal Code section 13700, subdivision (b) defines “domestic violence” as “abuse committed against an adult … who is a … person with whom the suspect has had a child or is having or has had a dating or engagement relationship.”
It is not disputed that Hernandez and Gonzalez had a child together. Hernandez, therefore, focuses on whether or not the acts described by the witnesses were abuse. “Abuse” is defined in section 13700, subdivision (a) as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” Therefore, pursuant to this definition, abuse occurred if Hernandez intentionally caused bodily injury, intentionally attempted to cause bodily injury, or if he caused Gonzalez to be reasonably in apprehension of imminent serious bodily injury.
Hernandez attempts to convince us that pulling one’s hair could not cause bodily injury and, therefore, the testimony that he pulled Gonzalez’s hair should have been excluded. This argument must fail because it focuses on only one portion of the definition. Even if we were to agree with Hernandez that pulling on Gonzalez’s hair could not cause bodily injury, which we do not, the jury could have found that by doing so Hernandez caused Gonzalez to be reasonably apprehensive of imminent serious bodily injury. Therefore, the evidence clearly falls within the definition of abuse and was admissible.
Next, Hernandez claims the prior acts of domestic violence were not relevant, even if admissible pursuant to Evidence Code section 1109. Prior to adoption of Evidence Code section 1109, evidence of prior bad acts generally was inadmissible, not because such testimony had no probative value but because it had too much probative value. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) “[T]he case law clearly shows that evidence that [the defendant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses. As noted in [People v.] Alcala [(1984) 36 Cal.3d 604, 631], ‘Such evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.” … [Citations.]’ [Citations.]” The Legislature, in enacting Evidence Code section 1109, concluded the policy considerations favoring admission of prior acts of domestic violence outweighed the policy reasons for excluding prior bad acts. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.)
Stated simply, propensity evidence, if permitted by the applicable rules of evidence, is relevant to establish that the defendant has a propensity to commit acts of domestic violence and, therefore, may have committed an act of domestic violence in the present case. In a case such as this one, where the defendant asserts he was not responsible for the murder, the jury can use the prior bad acts as one factor in deciding if he did commit the murder.
Such evidence need not meet the test of People v. Ewoldt (1994) 7 Cal.4th 380, which dealt exclusively with the admission of evidence pursuant to Evidence Code section 1101. We reject Hernandez’s arguments suggesting otherwise.
Finally, Hernandez argues the prior acts evidence should have been excluded because the probative value of the evidence was substantially outweighed by its prejudicial effect. We disagree.
The trial court retains broad discretion in determining whether evidence is admissible pursuant to Evidence Code section 352. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) We will not disturb the trial court’s ruling unless that discretion has been abused. (Ibid.)
The trial court recognized it had discretion either to admit or exclude the evidence, determined the evidence was probative, and concluded the probative value of the evidence was not outweighed by its prejudicial effect. Hernandez argues the trial court erred because the evidence had little or no probative value and its prejudicial effect was great.
According to Hernandez, the evidence had little probative value because of the significant difference between pulling Gonzalez’s hair and murdering her by three close-range shots from a shotgun. Hernandez deems the evidence highly prejudicial because the jury likely convicted him because he pulled Gonzalez’s hair.
While no one can dispute that pulling Gonzalez’s hair and hitting her are significantly less severe than shooting someone, this testimony was relevant because it established that Hernandez had a propensity for domestic abuse. This propensity, the Legislature has concluded, is admissible to help determine whether the defendant, in this case Hernandez, committed the act of domestic violence for which he or she is on trial. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334.) The probative value of this evidence is enhanced in a case such as this, where Hernandez asserts he was not responsible for Gonzalez’s murder. Propensity evidence is admitted to permit the jury to infer that if it concluded Hernandez committed acts of domestic violence in the past, he may have done so in this case. (Ibid.) Therefore, the evidence was very probative.
Nor did the evidence create the type of prejudice that would warrant its exclusion. “‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Morton (2008) 159 Cal.App.4th 239, 249.)
We do not think the propensity evidence in this case was likely to create an emotional bias against Hernandez. As Hernandez so often states in his briefs, the evidence of domestic violence was relatively trivial when compared to the gruesome murder. We do not think any jury would convict Hernandez of murder simply because he hit Gonzalez and pulled her hair on prior occasions. There is certainly no evidence that supports an inference that this jury did so.
Our conclusion that the propensity evidence was probative, and that it was not likely to invoke the kind of prejudice Evidence Code section 352 was designed to prevent, establishes that the trial court did not abuse its discretion when it determined the propensity evidence was admissible. Our conclusions also establish that Hernandez’s right to due process was not violated by the admission of such evidence.
Since we reject each of Hernandez’s claims of error during trial, we also necessarily reject Hernandez’s claim of cumulative error.
IV. Parole Revocation Fine
Hernandez’s final argument is that the trial court erred in imposing a parole revocation fine pursuant to section 1202.45 because he was sentenced to a term of life in prison without the possibility of parole. The People concede that the fine cannot be imposed since Hernandez is statutorily ineligible for parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) Therefore, we will strike the parole revocation fine.
DISPOSITION
The judgment is affirmed. The parole revocation fine imposed pursuant to section 1202.45 is stricken. The matter is remanded to the trial court for the issuance of a new abstract of judgment to reflect properly the fines imposed in this case.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.