Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County, Super. Ct. No. GA064681, Charles C. Lee, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Juan Ignacio Iniguez.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Romo.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellants Juan Ignacio Iniguez and Daniel Romo were both sentenced to 25 years to life in prison for the crime of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)). Romo turned 17 years old around the time of the crime. Iniguez was the boyfriend of Romo’s mother and lived with her and Romo. The crime involved hiring Romo’s friend, Richard “Casper” Rivera, and later hiring a purported associate of Rivera’s, Detective Leopold Noyola, to kill Iniguez’s ex-wife, Sonia, and her current husband, Francisco. Iniguez and Romo were arrested soon after Noyola was hired, as Rivera was a civilian who secretly worked undercover for the sheriff’s department, and Noyola was actually a sheriff’s deputy who was posing as a hit man.
Subsequent code references are to the Penal Code unless otherwise stated.
On appeal, Romo attacks the sufficiency of the evidence and the lack of an instruction that Rivera was an accomplice whose testimony should be viewed with distrust. Iniguez contends that the trial court should not have allowed evidence of statements he made to Detective Noyola in which he claimed he had committed murders in the past and had a friend who wanted to hire Noyola to kill the friend’s ex-wife. As to sentencing, appellants both contend that the trial court erred when it failed to order current probation reports, as they were eligible for probation.
We affirm as to guilt but remand for resentencing, because current, meaningful probation reports were not prepared or considered at appellants’ joint sentencing hearing.
PROCEDURAL HISTORY
Iniguez and Romo were jointly convicted of soliciting Detective Noyola to murder Sonia (count 1) and Francisco (count 2). On counts 3 and 6, appellants were separately charged with and convicted of conspiracy to murder Sonia and Francisco. Counts 4 and 5 were related counts that were dismissed prior to the trial. On counts 7 and 8, appellants were separately charged with and convicted of soliciting Rivera to murder Sonia. The jury found appellants guilty as charged. They were sentenced to 25 years to life in prison on their respective conspiracy charges, counts 3 and 6. The other counts were stayed.
FACTS
As Romo challenges the sufficiency of the evidence, we pay particular attention to the difference between what he did and what Iniguez did.
1. Prosecution Evidence
A. Rivera’s Testimony
i. Background Provided by Rivera
Rivera was an alcoholic who “drank a lot of beer” on the days he failed to control himself. He did not currently use illegal drugs. The sheriff’s department had paid him for years to work as a confidential informant who went into houses to buy drugs from drug dealers. He also made some money painting cars. He had used the name “Casper” since childhood, because he liked the cartoon character Casper the Friendly Ghost. He had led a “bad life,” but he was not a gang member. He did not own a gun, had never been to prison, and had never stabbed, shot or killed anyone, although he once beat up a person who had to be hospitalized.
Throughout most of 2005, Rivera lived and worked in the garage of his aunt’s home in Lynwood. Romo, who was 16 years old at that time, lived nearby with his mother and Iniguez. Romo and Rivera first met when Romo passed by Rivera and asked for a beer while Rivera was working on a car. After that first meeting, Romo and Rivera talked together almost every day. Rivera enjoyed Romo’s company and liked to impress him. Romo thought that Rivera was a gang member, but the only illegal thing they did together was drink beer.
According to Rivera, when he spoke with Romo in Lynwood, he was trying to help Romo to stay away from the gangs that were active in that area, but Romo did not want to listen. Rivera thought Romo was already headed in the direction of gang involvement, based on the way Romo walked, talked, and dressed. Rivera did not recall seeing a tattoo that said “Lynwood” on Romo’s hand. If Romo had such a tattoo at the time of trial, it would show he claimed membership in the Lynwood gang. He might have gotten a tattoo like that while he was in jail on this case.
ii. Rivera’s Testimony About the Crime
Rivera moved to Downey in early December 2005. He received a telephone call around that time from Romo. Romo said that he and his stepfather had a “job” for Rivera, as they wanted to hire Rivera “to kill some people.” Romo used words like “snuffing someone out,” which meant murdering someone. Rivera responded that the subject needed to be discussed in person rather than over the telephone.
Romo brought Iniguez to Rivera’s home and introduced Iniguez as his stepfather. Rivera had not previously met Iniguez. Romo stood nearby “for a little while” while Iniguez and Rivera talked. As that discussion continued, Romo moved “ten feet away” to Rivera’s truck. He stayed by the truck with some acquaintances of Rivera’s and drank some beer.
Iniguez told Rivera that he “wanted to kill his ex-wife,” Sonia, because she was “messing him over for child support.” Sonia and her current husband, Francisco, were to be killed inside their home. Iniguez’s two daughters also lived there and were not to be killed. The crime was to look like a home invasion robbery. It was to occur as soon as possible, before an upcoming court hearing regarding child support.
Iniguez also said that Romo would show Sonia’s house to Rivera, and Romo wanted to help during the crime. Iniguez asked how much Rivera would charge. Rivera requested $500. Iniguez said he would pay $1,000, and Rivera could keep any jewelry and money he found inside Sonia’s house. He gave Rivera $200 cash that day. He added that, if Rivera completed this job successfully, there would be more work for him, as Iniguez had a friend who wanted to hire someone to kill the friend’s ex-wife in Utah due to problems like those that Iniguez had with Sonia. Rivera would be paid much more for the job in Utah, which involved killing three people.
At Iniguez’s request, Rivera agreed to look on “the street” for a gun that had previously been used in a murder. Iniguez promised to provide cash for the gun once it was located. Rivera was supposed to call Iniguez when they were “ready to rumble.” Iniguez left Rivera’s home, alone.
Rivera and Romo drove together to Sonia’s home so that Romo could point it out. En route, they discussed how to commit the crime. Romo wanted to come inside and help. He said he would wear a ski mask, as Sonia had seen him before. Rivera believed that it was at this time that Romo suggested that, since Sonia was a Christian, Rivera should knock on the door and pose as a Christian so that Sonia would open the door. After that, Rivera and Romo would enter the house together and tie the people up with duct tape. Then, one of them would shoot the people while the other ransacked the house. It “really didn’t matter who would be the trigger man.”
As Rivera’s vehicle approached Sonia’s house, Romo covered his head and ducked down. There were several houses on the property. Romo told Rivera that Sonia and her husband lived in the front house. He also described Sonia’s car. Rivera then drove Romo home.
On many subsequent days that month, Iniguez and Romo telephoned Rivera on his cell phone to discuss “the fastest way and easiest way” to commit the crime. Romo also suggested hitting the people over the head with a baseball bat or using a silencer on the gun to avoid making too much noise.
Beginning around January 21, 2006, Rivera spent 10 days in jail on an unrelated offense that involved his painting a stolen car. He had intended to kill Sonia when Iniguez hired him, as he needed the money, but he reconsidered before and during the time he was jailed. He had never killed anyone before, did not know the intended victims, and had not been wronged by them. He also did not like being incarcerated. He decided that he did not want to kill anyone, except in self-defense.
When Rivera got out of jail he found messages on his cell phone from Romo and Iniguez, asking where he had been hiding. Romo’s messages accused Rivera of being a coward and asked him if they were going to do the job. Iniguez’s messages threatened to find someone else to do the job.
Soon after his release, Rivera happened to see Romo and explained that he had been in jail. Romo asked again if they were going to go through with the job. Iniguez soon telephoned Rivera and then arrived at Rivera’s home with $40, beer, and cigarettes. Rivera accepted the items and did not tell Iniguez he had changed his mind. Iniguez offered Rivera an additional $1,000 or $2,000 for killing Sonia as soon as possible. He also promised to give Rivera some marijuana to sell. He added that he now had “another job” for Rivera. He offered to give Rivera $2,000 and the boat in his backyard if Rivera killed Romo’s mother, as she was leaving him and moving with Romo to Arizona.
After Iniguez left, Rivera called Sheriff’s Detective Eric Hakala, whom he knew from his work as an informant. Rivera told Hakala what had been “going on,” and repeated the information to two other detectives, Dana Duncan and Mike Staley. At the detectives’ suggestion, Rivera telephoned Iniguez and said he was going to use a “homeboy” named “Leo” or “Shotgun” to help with the job. Iniguez liked that idea. A meeting was arranged so that Iniguez could meet Leo. Leo was actually Detective Noyola, who had experience in working undercover as a hit man.
Rivera and Detective Noyola drove together to the meeting place, a parking lot behind a market. Iniguez drove up alone. Rivera introduced Noyola as “Shotgun.” Rivera told Iniguez that Noyola was a member of his gang, which was not true, as there was no such gang. Noyola and Iniguez spoke inside Iniguez’s truck while Rivera waited outside. After that meeting, they all left, and Rivera went “out of the loop” of the conspiracy. Iniguez did not call him again, and he did not see Romo. He thought Romo tried to call him, but he did not answer his phone.
At the time of the trial, Rivera was receiving money from Detective Duncan for a hotel room, food, and phone calls. Before he lived at the hotel, he spent four months as a homeless person, sleeping in his car and sometimes lacking money for food. He testified under a grant of immunity and understood he could not be prosecuted for his testimony. He had been paid for his work as an informant on the drug cases but was not being paid for his testimony here.
B. Rivera’s Telephone Records
None of Rivera’s conversations with Romo and Iniguez were recorded. His cell phone records verified, however, that he received numerous telephone calls from both of them in December 2005.
C. Detective Noyola’s Testimony
On February 6, 2006, Detectives Staley, Duncan, and Noyola decided that Noyola would pose as a hit man and meet with the man who Rivera said was trying to hire him to kill people.
On February 9, 2006, Detective Noyola went with Rivera to the meeting with Iniguez. Noyola was secretly “wired” with an audio recorder. Iniguez drove up, alone. Rivera introduced Noyola to Iniguez. Noyola got into Iniguez’s truck without Rivera. Noyola’s ensuing conversation with Iniguez produced a tape that the jury heard at the trial. The tape showed the following:
Detective Noyola asked Iniguez what he needed. Iniguez replied, “I need the, that bitch, man going down. [Sic.]” Noyola responded, “All right, you need me to kill her[,] right?” Iniguez answered, “That’s it.” He said he wanted Sonia killed because she had lied to the court in the divorce proceedings, had obtained too much property and child support from him, and was not letting him see his daughters. Her killing was to look like a robbery or carjacking. His daughters were not to be touched. He wrote down on a piece of paper his telephone number, the names of Sonia and her husband, and their address. He drew a map that showed which of the four houses on the property was the right house. He described Sonia’s vehicles and her usual schedule, and suggested the killing occur during a carjacking on a Saturday morning. He worked as a truck mechanic and was in financial distress from the divorce, but he was willing to pay Noyola $1,000 once Sonia was killed and an additional $500 several months later.
Detective Noyola gave Iniguez his telephone number. He stated that he did “clean” work, and neither he nor Iniguez would be caught. He would act alone when he killed Sonia. The agreement was to be solely between himself and Iniguez, and was to exclude Rivera. Iniguez agreed. He said he did not trust Rivera and was sorry he had not met Noyola sooner.
Detective Noyola demanded a down payment. Iniguez gave him two $100 bills and promised to provide $100 worth of marijuana the next day. He also said there was potentially more money for Noyola, as he had a friend who was willing to pay $7,000 to have his ex-wife killed in Utah.
During a telephone call the next day, February 10, 2006, Detective Noyola and Iniguez discussed how Noyola would receive the marijuana. Iniguez also said that Sonia was going away for the weekend to her father’s funeral and should be killed once she returned. He provided physical descriptions of Sonia and her husband.
The following day, February 11, 2006, Iniguez and Detective Noyola arranged to meet at a parking lot to discuss further details and transfer the marijuana. They both arrived at the meeting alone. Noyola entered Iniguez’s truck, again wearing a hidden recording device that produced a tape. Iniguez gave Noyola a bag that he said contained $100 worth of marijuana. They discussed further details about the proposed killing of Sonia and the killing of Iniguez’s friend’s ex-wife in Utah. They again discussed the importance of having no one else involved. Iniguez complained that his stepson had told him that Rivera could “do it,” but Rivera then took $200 from him and did nothing. He also said that he had killed three people in Mexico when he was a young man. He stated that he made extra money selling marijuana, and Noyola could do that with him.
As the meeting ended, Detective Noyola told Iniguez that the next time they spoke, Sonia would be dead. Iniguez said, “Hope, she[’s] dead.” After the meeting, Iniguez was arrested.
2. Defense Evidence
A. Detective Duncan
Detective Hakala told Detective Duncan that Rivera “liked to drink” and sometimes failed to call on schedule, but was “good as gold” and “flawless in the drug arena.” Duncan kept Rivera’s cell phone charged and gave him money prior to the trial because Rivera was homeless and the detective wanted to remain in contact with him.
B. Testimony by Iniguez
Iniguez was 51 years old when he testified in March 2007. He said he talked with Romo about frightening Sonia, and not about killing her or anyone else. He asked Romo if he “knew of someone that could go and scare” Sonia. Romo put him “in touch with” Rivera, but as far he knew, Romo “never knew about anything.”
Romo took Iniguez to Rivera’s house, introduced him to Rivera, and immediately walked behind the house to a person who was near a truck. Iniguez paid Rivera $200 to go to Sonia’s home and “break some of the glass,” as he sought a “drama” that would “frighten her.” Iniguez then left Rivera’s house, leaving Romo behind, without knowing that Romo was going to show Rivera where Sonia lived. He did not hear from Rivera for a while after that. He once gave Rivera $40, at Rivera’s request, when they happened to meet at a liquor store. Another time, he went to Rivera’s home, and Rivera said he had been too busy “to do anything.”
Iniguez further testified that, at his first meeting with Rivera, Rivera showed him a sawed-off rifle. Rivera said he had a friend who was “willing to kill,” and if Iniguez did not talk to that friend, the friend might start shooting inside the homes of Iniguez or his daughters. Iniguez tried to sound like a criminal when he met with Detective Noyola because he believed that Rivera and Noyola were trying to get more money from him and might harm him or his family. He was also trying to buy time to pack up his possessions, as he planned to move to Arizona with Romo and Romo’s mother, with whom he had lived happily for five years. He therefore made up the stories that he had killed people in Mexico, made money selling marijuana, wanted to have Romo’s mother killed, and had a friend who wanted that ex-wife killed. He intended to report Rivera to the sheriff’s department on the day he left for Arizona.
Romo did not testify.
DISCUSSION
1. Sufficiency of the Evidence as to Romo
Romo contends that his conviction for conspiracy to commit murder is not supported by substantial evidence, as the only evidence that tied him to that offense came from the uncorroborated testimony of Rivera, an accomplice. He argues that he is guilty only of solicitation to commit murder, for introducing his stepfather, Iniguez, to his friend, Rivera.
A. Legal Background
“The crime of conspiracy is defined in the Penal Code as ‘two or more persons conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance thereof.” (People v. Swain (1996) 12 Cal.4th 593, 600, quoting §§ 182, subd. (a)(1), 184.) Conspiracy is an inchoate crime that does not require commission of the target offense and reaches farther back into preparatory conduct than an attempt. (Swain, at p. 600.) There are two requisite elements of specific intent, (a) the specific intent to agree or conspire, and (b) the specific intent to commit the offense. (Ibid.) The crime is punishable by 25 years to life in state prison, the same penalty as for the completed crime of first degree murder. (§ 182, subd. (a)(1); see also § 190, subd. (a); People v. Cortez (1998) 18 Cal.4th 1223, 1226.)
In contrast, solicitation to commit murder is punishable by imprisonment in state prison for three, six, or nine years (§ 653f, subd. (b)). “‘Solicitation is defined as an offer or invitation to another to commit a crime, with the intent that the crime be committed. The crime of solicitation . . . is complete once the verbal request is made with the requisite criminal intent; the harm is in asking, and it is punishable irrespective of the reaction of the person solicited.’” (People v. Wilson (2005) 36 Cal.4th 309, 328, quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377-1378; see also, 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 33, p. 239.)
“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 . . . .” (§ 1111.) The corroboration must relate to some act or fact that is an element of the crime, but it need not be sufficient in itself to establish every element of the offense. (People v. Williams (1997) 16 Cal.4th 635, 680-681.)
B. Analysis
Utilizing the appropriate standard of review, we view the evidence in the light most favorable to the prosecution, as we consider whether a rational trier of fact could have found the elements of the crime to be proven beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The evidence contained more corroboration of Rivera’s testimony than Romo suggests.
Romo made the initial telephone call that brought Rivera into the conspiracy, and he then introduced Iniguez to Rivera. The importance of the initial telephone call is underscored by the fact the jury asked during deliberations to rehear the evidence about it. Rivera’s testimony about the phone call and the introduction was corroborated by Iniguez’s statement to Detective Noyola, during the second taped meeting, which indicated that he initially hired Rivera to kill Sonia because his stepson told him Rivera could “do it.” Further corroboration came through Iniguez’s testimony at the trial, in which he said he asked Romo to find him someone who would frighten Sonia, and then was introduced by Romo to Rivera at Rivera’s house.
Rivera further testified about acts that Romo did to further the conspiracy after Iniguez left Rivera’s house. He said that he and Romo drove together to Sonia’s house so that Romo could point it out, Romo hid when they were near the house, Romo explained which house was Sonia’s, and Romo described Sonia’s car. He also said that on that day and in numerous subsequent phone calls they discussed various ways of entering the house and committing the crime.
While none of the conversations between Romo and Rivera were recorded, there was ample corroboration of Rivera’s testimony through such evidence as:
(a) Iniguez’s testimony that he went with Romo to Rivera’s house but left Romo there when he departed, which tended to support Rivera’s testimony that Romo went with him to show him where Sonia lived.
(b) Rivera’s telephone records, which showed that both Romo and Iniguez repeatedly called Rivera in the ensuing days of December, and therefore corroborated Rivera’s testimony that both Romo and Iniguez pressed him to act after he agreed to kill Sonia.
(c) The map that Iniguez drew for Detective Noyola, which verified Rivera’s testimony about the location of Sonia’s house and the other houses on the same property, facts that Rivera would not have known unless he had been there.
(d) Detective Noyola’s testimony about what Iniguez said during their conversations, which was recorded and heard by the jury, and which corroborated Rivera’s description of the nature of the conspiracy.
We recognize that Romo, who was very young, may well have been seeking approval from his stepfather Iniguez and his much older friend Rivera, who purported to be a gang member and killer. (See, e.g., In re Michael T. (1978) 84 Cal.App.3d 907, 911 [minor’s inculpatory remarks after a shooting could reasonably be construed as “mere bravado in seeking peer approval”].) Similarly, Romo and Rivera may have been trying to impress each other when they discussed various ways of killing Sonia. Even so, we find that the combination of facts previously summarized showed that there was sufficient evidence to support Romo’s conviction for conspiracy to commit murder.
2. Romo’s Claim Regarding CALCRIM No. 335
The jury received Judicial Council of California Criminal Jury Instructions (2006-2007)CALCRIM No. 418, which concerns out-of-court statements by coconspirators. The trial court considered also giving CALCRIM No. 335 on the two conspiracy counts, to inform the jury that Rivera was an accomplice whose testimony had to be corroborated. The prosecutor argued that CALCRIM No. 418 and not CALCRIM No. 335 was the appropriate instruction in a conspiracy case. Romo’s counsel maintained that both instructions were necessary. The court decided not to give CALCRIM No. 335. Romo contends that its absence constituted reversible error.
The modified version of CALCRIM No. 418 the jury received stated: “In deciding whether the People have proved that a Defendant committed the conspiracy to commit murder charged in counts 3 and 6, as to defendants Iniguez and Romo, respectively, you may not consider any statement made out of court by Romo and Iniguez unless the People have proved by a preponderance of the evidence that: [¶] 1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made; [¶] 2. Romo and/or Iniguez were members of and participating in the conspiracy when they made the statement; [¶] 3. Romo and/or Iniguez made the statement in order to further the goal of the conspiracy; [¶] AND [¶] 4. The statement was made before or during the time that each defendant was participating in the conspiracy. [¶] A statement means an oral or written expression, or nonverbal conduct intended to be a substitute for an oral or written expression. [¶] Proof by a preponderance of the evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] You may not consider statements made by a person who was not a member of the conspiracy even if the statements helped accomplish the goal of the conspiracy.”
CALCRIM No. 335 states: “If the crime[s] of ___________ <insert charged crime[s]> (was/were) committed, then _____________ <insert name[s] of witness[es]> (was/were) [an] accomplice[s] to (that/those) crime[s]. [¶] You may not convict the defendant of ___________ <insert crime[s]> based on the (statement/ [or] testimony) of an accomplice alone. You may use the (statement/ [or] testimony) of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s (statement/ [or] testimony) is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s (statement/ [or] testimony); [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime[s]. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] [The evidence needed to support the (statement/ [or] testimony) of one accomplice cannot be provided by the (statement/ [or] testimony) of another accomplice.] [¶] Any (statement/ [or] testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/ [or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”
“Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.” (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) “If sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice, the trial court must so instruct the jury, even in the absence of a request.” (People v. Brown (2003) 31 Cal.4th 518, 555; see People v. Hayes (1999) 21 Cal.4th 1211, 1270.)
The evidence justified a finding that, as a matter of law, Rivera was an accomplice. It was therefore error for the court not to give CALCRIM No. 335. We further find, however, that it is not reasonably probable that Romo would have received a more favorable result if CALCRIM No. 335 had been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)
One reason for our conclusion is that we have already found sufficient corroborating evidence to justify Romo’s conviction, and a failure to instruct on accomplice liability “is harmless if there is sufficient corroborating evidence in the record.” (People v. Brown, supra, 31 Cal.4th at p. 556.)
Another reason for our conclusion is that the jury was repeatedly told that there were reasons to mistrust Rivera and his testimony needed to be corroborated. Counsel for all sides focused on that issue when Rivera was on the witness stand, when they made their opening statements, and when they made their final arguments. For example, defense counsel emphasized that there was no recording of Romo’s conversations with Rivera, Rivera was currently receiving money from the sheriff’s department so he could live at a hotel and not be homeless, and the grant of immunity to him meant there were no consequences if he lied on the witness stand.
We are therefore confident that the absence of CALCRIM No. 335 made no difference at Romo’s trial.
3. Iniguez’s Claim of Evidentiary Error
Iniguez argues that he was denied due process of law through admission of the portions of his statements to Detective Noyola in which he said he had committed three murders in Mexico and had a friend who wanted people killed in Utah.
A. The Record
At a pretrial hearing, Iniguez asked the court to exclude, pursuant to Evidence Code section 352, his statements to Detective Noyola that he had killed three people in Mexico; was never caught on two of the killings; and was incarcerated in Tijuana for seven years on the third killing before he paid $13,000 or $14,000 to be released. The trial court overruled the objection after the prosecutor argued that the evidence was admissible on the issue of Iniguez’s specific intent to kill.
The jury heard evidence of the statements during Detective Noyola’s testimony and when it listened to the tapes. Noyola also testified that he had no proof that Iniguez had ever killed anyone, and Iniguez might have been lying to intimidate him.
Before the defense case began, the court gave this special instruction: “Ladies and gentlemen, evidence was admitted previously regarding defendant Iniguez’s statements that he previously committed several murders. This testimony was admitted not for the proof of the matter asserted, but to show defendant’s intent.”
Iniguez’s testimony included an explanation that he invented the story about the Mexico killings because he was trying to sound like a criminal, to prevent harm to himself or his family from Detective Noyola and Rivera.
During final argument, Iniguez’s counsel reminded the jury about the special instruction and the lack of proof that Iniguez actually killed anyone in Mexico. The prosecutor responded in closing argument by suggesting that the evidence that Iniguez had been incarcerated for murder could be used to show that he had a prior criminal conviction.
B. Analysis
A trial court’s evidentiary rulings are reviewed for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) There was no abuse of discretion in the rulings regarding Iniguez’s descriptions of previous and future killings. Specific intent to kill was one of the elements the prosecution had to prove, and the discussions of other crimes tended to show that Iniguez was serious about intending to have Sonia killed. Moreover, we presume that the jurors followed the court’s limiting instruction (People v. Young (2005) 34 Cal.4th 1149, 1214), and therefore used the evidence solely for the issue of intent, particularly since there was no proof that the Mexico crimes occurred and there were reasons to believe Iniguez was boasting about crimes that never happened.
We also see no error in admitting Iniguez’s statements about his friend’s desire to hire a hit man to kill the friend’s wife in Utah. That evidence was relevant to Iniguez’s intent, as it was part of his effort to make killing Sonia look more attractive, by indicating that more money could be made on the Utah crime if the killing of Sonia was successful.
Finally, we reject Iniguez’s contention that the evidence of the other killings violated his federal constitutional right to due process of law, as we find no error in admission of the evidence, the jury was correctly instructed on the limited purpose of the evidence, and the tapes of Iniguez’s conversations with Detective Noyola constituted overwhelming evidence of his guilt.
4. The Sentencing Issue
Section 1203, subdivision (b)(1) (section 1203(b)(1)) provides, in pertinent part: “[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.”
Appellants argue that the case must be remanded for resentencing because the trial court sentenced them without a current probation report, in violation of section 1203(b)(1). Respondent counters that “any error in failing to obtain a current probation report was harmless because the trial court would not have granted probation even if appellants were eligible for probation.” We remand for resentencing because, on the facts of this case, the lack of current, meaningful probation reports resulted in a joint sentencing hearing that was fundamentally unfair.
A. The Record
The preplea probation reports prepared in May 2006 basically summarized the crimes and appellants’ prior criminal or juvenile court history, which was sparse. Appellants had not been interviewed for the reports, as their counsel had not consented to those interviews. The “pre-trial service records” that were utilized to prepare the report contained no information “concerning substance abuse, physical mental or emotional health [sic], residence, marriage/parenthood, formal education, employment status, financial status, gang activity or military experience.” The sections of the reports that dealt with those topics were left blank. The “Interested Parties” section had comments only from Detective Duncan, who recommended a long prison sentence for Iniguez. The reports stated that probation eligibility needed to be determined but a denial of probation was appropriate due to the facts of the crimes.
Romo’s previous history consisted of a single juvenile arrest, at age 15, for receiving known stolen property. The arrest led to a sustained petition, for which the disposition was not shown. Iniguez had three arrests, which led to two convictions, almost 30 years earlier, for illegal entry into the United States and transporting illegal aliens here.
Appellant’s joint sentencing hearing occurred on May 9, 2007, a year after the preplea reports were prepared. The hearing began with these words:
“THE COURT: Good morning, everybody. [¶] Counsel, do we have current probation reports? I see a preplea [report]. Is there another one done?
“MS. NAVA [the prosecutor]: No.
“THE COURT: Okay. This is the People v. Daniel Romo and Juan Ignacio Iniguez matter. GA064681. [¶] Counsel, state your appearances.”
Appellants’ counsel and the prosecutor gave their names. Appellants personally identified themselves. The court summarized the proceedings that had already occurred. It said it had read the People’s sentencing memorandum, which requested sentences of 25 years to life for each defendant for conspiracy to commit murder, with the remaining counts stayed. The court had also read Romo’s motion for new trial, which argued, inter alia, that sentencing him to 25 years to life in prison would constitute cruel or unusual punishment under the California Constitution. The court was inclined to impose the punishment proposed by the prosecutor. Defense counsel asked the court to strike each defendant’s conspiracy count and impose sentence for solicitation of murder, which carries a far shorter term of imprisonment.
The court then indicated that it recalled the evidence, including Rivera’s testimony that Romo suggested using a baseball bat as a weapon. The court believed Rivera was a credible witness. It refused to sentence appellants to anything less than the prosecutor sought. It stated, “Neither defendant is eligible for or suitable for probation in light of the status of this case.” It later observed, “[I]t’s certainly my impression when someone stands convicted of conspiracy to commit murder, the sentence is [sic] I do not have a range or discretion[,] that the code says what the sentence is and I cannot give a greater sentence, and the [L]egislature has passed the law perhaps to make sure that judge[s] cannot deviate up or down. So I think the sentence is what it is, and I have to implement what the Legislature has directed.”
Before imposing sentence, the court listened to emotional requests for leniency from some of appellants’ family members. Iniguez’s two elder daughters described him as a good father who had always worked hard and met his obligations. Romo’s mother said he was a loving son who had been used “as a toy” by two older men, Rivera and Iniguez. She thought it was unfair that he would have the same sentence as Iniguez, who was 50 years old. She wished she had moved out of state more quickly with him, to get him away from Rivera’s corrupting influence.
B. Analysis
Section 1203(b)(1) mandated preparation of probation reports for appellants’ sentencing hearing. Respondent does not argue to the contrary. Respondent also does not contend that the issue was waived, probably because section 1203, subdivision (b)(4) requires a written or oral stipulation for that waiver (People v. Dobbins (2005) 127 Cal.App.4th 176, 182 (Dobbins)), and there was no such stipulation here. Instead, respondent maintains that the failure to comply with section 1203(b)(1) was harmless error under Dobbins.
In our view, Dobbins involved a very different situation. It was an appeal following revocation of probation and imposition of a previously suspended prison sentence. A probation report detailing the defendant’s lengthy criminal record was prepared shortly before the sentencing hearing at which probation was granted. Two months after the defendant was placed on probation he was arrested for new offenses. A month after that arrest, a progress report was prepared by the probation officer, describing numerous ways in which the defendant had failed to comply with his probation conditions. Eight months after the initial probation report, probation was revoked and the prison sentence was imposed, due to the new offenses.
On appeal, the defendant in Dobbins contended that the trial court should have ordered and considered an updated or supplemental probation report before it imposed the prison sentence. Dobbins decided that the trial court erred in failing to obtain a current probation report, but the error was harmless under People v. Watson, supra,46 Cal.2d at page 836. (Dobbins, supra, 127 Cal.App.4th at p. 182.) There was no need to speculate about how information in a current probation report might have affected the trial court’s decision, as the information in the existing probation report and status report, as well as the defendant’s commission of new offenses, showed that his “progress on probation was undoubtedly unsatisfactory by any measure.” (Id. at p. 183.)
Here, unlike the defendant in Dobbins, appellants had very little criminal or juvenile history. Also, unlike the defendant in Dobbins, detailed probation reports were never prepared about appellants, so the trial court knew almost nothing about them except the facts of the crime, their lack of record, and what their family members said at the sentencing hearing. The court had to decide not only whether it should grant probation, but also whether it should impose a shorter prison sentence on one or both defendants by striking the conspiracy count, as defense counsel requested. Romo was very young when the crime occurred and was less involved than his stepfather, Iniguez, but he received the identical sentence, 25 years to life in prison. Under the circumstances, we simply cannot know how a detailed, meaningful probation report would have affected the trial court’s decisionmaking.
We were recently faced with a similar problem in People v. Conners (2008) 168 Cal.App.4th 443 (Conners), which was filed after the oral argument in this case. In Conners, a probation report was prepared in July 2006, prior to trial. Like the preplea probation reports here, that report showed the defendant’s prior criminal history but lacked information on important subjects like the defendant’s personal background. The defendant represented himself at trial. Following his conviction, the court ordered a supplemental probation report on November 8, 2006. On November 14, 2006, the defendant requested counsel for sentencing. Two different bar panel attorneys appeared on subsequent dates, but they were unable to take the case. Finally, on January 10, 2007, a bar panel attorney named Yanuck appeared and was appointed as counsel. He requested a continuance for the preparation of transcripts that he needed for motions he planned to file. The trial court was dissatisfied with the probation report from the previous July, and had not received the supplemental probation report it had requested. Even so, the court denied Yanuck’s request for a continuance, proceeded with the sentencing hearing, and sentenced the defendant to prison.
We held in Conners that the combination of the lack of a meaningful probation report and the trial court’s refusal to continue the sentencing hearing resulted in a “fundamentally unfair” sentencing hearing that necessitated a remand for resentencing. (Conners, supra, 168 Cal.App.4th at p. 457.)
To reach that conclusion, we relied on People v. Leffel (1987) 196 Cal.App.3d 1310, 1318-1319 (Leffel) (overruled on other grounds in People v. Bullock (1994) 26 Cal.App.4th 985, 987-989). In Leffel, defense counsel requested a continuance of the sentencing hearing because he had belatedly received the probation report on the previous day. Leffel found that the trial court’s denial of the continuance necessitated a remand for resentencing. In reaching that conclusion, Leffel observed: “Although both parties argue the prejudice or lack thereof in the instant case, the possibilities for prejudice are clear and the actual prejudice suffered is a matter of conjecture. [¶] What the defendant might have been able to object to or to add further to the report cannot be determined because he was not afforded the proper opportunity to comprehend, analyze, investigate and evaluate the report. It is clear that the Legislature intended that he be given this opportunity. [¶] Although a defendant is not entitled to the same procedural safeguards at a sentencing hearing as he is at trial, the procedures must be fundamentally fair.” (Leffel, at p. 1318.)
In Conners, we decided that the circumstances were worse than in Leffel, supra, 196 Cal.App.3d 1310, “because there was, in effect, no probation report at all: despite the court’s order to do so, no supplemental probation report was ever submitted, and the report that existed had no information in it.” (Conners, supra, 168 Cal.App.4th at p. 457.) As the court had done in Leffel, we held that the defendant was entitled to a remand for resentencing, as “‘the possibilities for prejudice [were] clear and the actual prejudice suffered [was] a matter of conjecture.’” (Conners, at p. 457.) We also ordered preparation of an updated probation report, which was to include the defendant’s behavior during incarceration.
We apply the same reasoning here. Actual prejudice is a matter of conjecture, but the possibility for prejudice is clear because the trial court made critical decisions based on inadequate information. We therefore find that the lack of current meaningful probation reports resulted in a joint sentencing hearing that was fundamentally unfair. Appellants are entitled to (a) a remand for resentencing and (b) preparation and consideration of complete, updated probation reports that will include their behavior while they were incarcerated during the pendency of this appeal.
DISPOSITION
The judgments are affirmed. The judgments insofar as they relate to sentencing are ordered vacated and the matters are remanded for resentencing in accordance with the views expressed herein.
I concur: RUBIN, Acting P. J.
BIGELOW, J., Concurring and Dissenting.
I concur in the opinion except part 4, which concludes that the case must be remanded for a supplemental probation report. To that portion of the opinion, I dissent.
I would find appellants’ waived any sentencing error based on the lack of a second probation report. Counsel did not request a supplemental probation report at the trial court level nor did they object to the lack of one. After the trial court stated at the sentencing hearing that there was not a supplemental probation report, counsel expressly stated there was no legal cause not to pronounce sentence. The majority believes this issue cannot be waived, citing Penal Code section 1203, subdivisions (b)(1) and (4), which requires a written or oral stipulation, accepted by the court, to effectuate a waiver of the probation report. The problem with relying on those provisions is that it does not take into account that a probation report was prepared in this case. The issue here is whether a supplemental report can be waived without a written or oral stipulation. Those provisions do not address a supplemental probation report. Further, case law indicates that the failure to object to the preparation of a supplemental probation report can, in fact, be subject to waiver. (People v. Oseguera (1993) 20 Cal.App.4th 290, 293-294 (Oseguera); People v. Begnaud (1991) 235 Cal.App.3d 1548, 1554-1556 (Begnaud).) In Begnaud, the court held that upon resentencing after remand, counsel’s waiver of formal arraignment for pronouncement of judgment and indication to the court she was ready to proceed it was proper to infer defendant waived his right to a supplemental probation report. (Begnaud, supra, at p. 1556.) In Oseguera, the court held that a failure to order a supplemental probation report, even if mandated by the Penal Code, does not create a jurisdictional defect which cannot be waived. (Oseguera, supra, at p. 294.)
It is true that People v. Dobbins (2005) 127 Cal.App.4th 176, 182 (Dobbins), holds to the contrary. However, the court there relied on the same Penal Code provision as the majority does here – Penal Code section 1203, subdivision (b)(4). The Dobbins court makes the same oversight as the majority does – it fails to recognize that section does not address itself to supplemental probation reports. Here, no objection was voiced to the sentencing court and counsel both indicated there was no legal cause why the sentence should not be pronounced. Contrary to the conclusion reached by the majority, this issue was waived for purposes of this appeal.
Even if the issue had not been waived, any error in failing to prepare a supplemental probation report was also harmless. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) In my view it cannot be said that there is a reasonable probability that a result more favorable to the appellants would be reached if a supplemental probation report were ordered. The reasons for this are both numerous and overwhelming.
First, both counsel presented mitigating evidence at the sentencing hearing through the statement of appellants’ family members. The trial court heard and considered this testimony. Counsel had the opportunity to file a statement in mitigation but did not do so. Counsel’s failure to present any further information supporting the grant of probation is a good indication that there was not any.
Second, both appellants were in custody before the initial probation report was prepared and they stayed there until the day of sentencing. Not much changes during a period of pretrial incarceration that would impress a trial judge to grant probation.
Third, the majority takes issue with the lack of sufficient information in the probation reports and contends that a supplemental probation report would have been more thorough. However, the reason the probation report lacked more information was stated in the probation report itself: the “[p]re-trial service records did not indicate any information regards to defendant concerning substance abuse, physical, mental,] emotional health, residence, marriage/parenthood, formal education, employment status, financial status, gang activity or military experience.” Given that neither appellant suggests how this state of affairs has or will change, it is difficult to see how more information can be added to a supplemental probation report on remand. Neither is there a suggestion that any such information would make it reasonably probable the court would grant probation to either appellant.
An objection is also required to preserve any issue about the contents of the probation report. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) Neither appellant objected to the sufficiency of the contents of the probation report.
Fourth, the statements of the trial court provide no indication that it was leaning toward a grant of probation. The same judge presided over the trial and was intimately familiar with the facts underlying the charges. When given the opportunity, the trial court denied motions for new trial and to reduce the conviction to a lesser offense. While the trial court was sympathetic to the fact that appellant Romo was young, when discussing the facts of the case he stated he was certain that “if Rivera had not pulled out and done what he was going to do at least two people would be dead . . . .” Before announcing sentence, the trial court indicated that neither defendant was suitable for probation.
Finally, the probation report recommended that probation be denied. In addition it ascribed both appellants with two circumstances in aggravation – that the crime involved a threat of great bodily harm and a high degree of viciousness, and that the manner in which the crime was carried out indicated planning. An additional factor in aggravation was assigned to Iniguez, who the probation officer found had induced others to participate in the commission of the crime. There were no factors listed in mitigation for either appellant. In my view, it is nearly impossible to conclude anything would change with a supplemental probation report.
The majority concludes that “[a]ctual prejudice is a matter of conjecture, but the possibility for prejudice is clear.” (Maj. opn. at p. 22.) It also states: “we simply cannot know how a detailed, meaningful probation report would have affected the trial court’s decision making.” (Maj. opn. at p. 20.) This is simply not the standard for reversal -- speculation is not the benchmark. There must be a reasonable probability that a result more favorable to the appellants would be reached if a supplemental probation report were ordered. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) I cannot concur in a decision which applies this standard.
BIGELOW, J.