Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA075960. Mark C. Kim, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant Trevor Glenn Landers.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Red Vigeant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P.J.
A jury convicted Trevor Glenn Landers (Landers) and Anthony Red Vigeant (Vigeant) of first degree murder (Pen. Code, § 187) (count 1), attempted home invasion robbery (§§ 211, 664) (count 2), and first degree residential burglary (§ 459) (count 3). The jury found that the murder was committed while Landers and Vigeant were engaged in an attempted robbery and burglary (§ 190.2, subd. (a)(17)). The jury also found that a principal was armed with a handgun (§ 12022, subd. (a)(1)).
All further references to statutes are to the Penal Code unless stated otherwise.
A third defendant, Ramon Hernandez, pleaded guilty before trial and subsequently testified for the prosecution in the trial of Landers and Vigeant.
Landers and Vigeant received identical sentences. In count 1, for the crime of first degree murder with the special circumstance of the crime having been committed during an attempted robbery and burglary, the trial court imposed an indeterminate term of life in prison without the possibility of parole. The trial court imposed a consecutive determinate term in count 2 with an additional year for the principal-armed allegation under section 12022, subdivision (a)(1). The trial court stayed a sentence in count 3 pursuant to section 654.
Landers and Vigeant both appeal on the ground that there was insufficient evidence to support the verdicts in the absence of substantial evidence to corroborate the accomplice’s testimony. Landers appeals additionally on the grounds that: (1) prosecutorial misconduct during argument mandates reversal; and (2) admission of extrajudicial hearsay statements made by codefendant Vigeant to the police violated his right to confront witnesses. Vigeant appeals on the ground that reversal is compelled because he was denied his constitutional right to discharge retained counsel. Landers and Vigeant join in any issues raised by the other that may accrue to their respective benefits.
Vigeant has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel in case No. B231443, which will be considered concurrently with, but separately from, the instant appeal.
FACTS
We review the evidence in accordance with the usual rules on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 66.) Ramon Hernandez (Hernandez) testified that he was a charged codefendant in the shooting death of David Pettigrew (Pettigrew). He had pleaded guilty to one count of murder and had admitted the special circumstance that the murder was committed during the course of a residential burglary and during the course of an attempted robbery. He had admitted to the personal use of a firearm and pleaded guilty to the attempted residential robbery and residential burglary counts. He had not yet been sentenced.
Hernandez had not been offered any deal or plea bargain and had not asked for one. He pleaded guilty to accept responsibility for his actions. He was not offered any leniency for testifying and had volunteered to testify because “the truth needs to be out there, and everybody has a right to the truth.” He also wanted to bring justice to the victim’s family.
Hernandez was a marine who had done two tours in Iraq. He was injured when a suicide vehicle exploded near him and shrapnel entered his head. He lost his left eye, his sense of smell, his left frontal lobe and part of his right frontal lobe. He suffered nerve damage in his right arm and hand. His brain injury affected his thinking and caused him to be more emotional than before, but his ability to feel empathy with others was diminished. He had also become “very compulsive.” He did things he normally would not have done, and he sometimes processed information more slowly.
Hernandez met fellow marine Vigeant at Camp Pendleton Marine Corps Base. Shortly thereafter, he met Vigeant’s cousin, Landers, another marine. At some point, Hernandez talked to them about Iraq and his injuries. Hernandez acknowledged that he did not discuss the emotional or psychological issues related to his injuries with Landers and Vigeant.
Hernandez heard Landers complain about his problems with Pettigrew, whom Hernandez did not know. Landers said that Pettigrew owed him some cocaine, and Vigeant had left his laptop computer with Pettigrew as collateral for the cocaine. Landers believed that Pettigrew was dodging him. Although Pettigrew had told Landers he could pick up the cocaine at Pettigrew’s apartment, Pettigrew would “blow [Landers] off” by turning off his cell phone whenever Landers called him.
Hernandez heard Landers and Vigeant threatening Pettigrew over the telephone. During a period of two and one-half hours, Landers and Vigeant left four threatening messages on Pettigrew’s voicemail. This occurred on the night of September 7, 2007, and the early morning of September 8, 2007.
On the evening of September 9, 2007, Hernandez was drinking with Vigeant and another marine at the barracks. They then went to a party at someone’s house. Landers telephoned Vigeant there and asked Vigeant to pick him up. Vigeant eventually agreed, and Hernandez went with Vigeant so as not to be stranded. When Landers joined them, Landers began complaining again about Pettigrew dodging him. Landers said Pettigrew still had not given him his cocaine, and if he had a gun “he would bust a cap in his ass....”
Hernandez told Landers that he had a handgun, whereupon Landers became “excited, very enthusiastic” and asked Hernandez where the gun was located. Landers wanted to get the gun to shoot Pettigrew. Vigeant also said he wanted Hernandez to get his gun, and he said he wanted Pettigrew to be killed. The only reason that Hernandez went with Landers and Vigeant to Pettigrew’s apartment was because Landers and Vigeant were looking for someone with a gun.
Hernandez, Landers, and Vigeant drove to Hernandez’s barracks, a 40-minute drive south, and Hernandez retrieved the gun from his car. They then began driving northward to Long Beach. Landers drove, Vigeant was in the front passenger seat, and Hernandez was in the rear seat. At some point during the two-hour drive, Hernandez asked the other men what they wanted him to do, and they said they wanted Pettigrew to be shot. Hernandez told them that there was a difference between being shot and being dead and asked them, “Which one do you want?” Landers said, “I want him dead.” Vigeant did not say anything, nor did he say, “No.” Hernandez then stated that Landers had the lead role, but Vigeant joined in the response that he wanted the man killed.
As they drove northward, Hernandez fired the gun out the window of the car in the Camp Pendleton area. He asked both defendants more than once what they wanted and they both said they wanted Pettigrew dead. According to Hernandez, “Plan A was to pick up cocaine. Plan B was to kill somebody, which was Mr. Pettigrew.” Hernandez did not like the fact that Pettigrew was messing with fellow marines.
When they arrived at their destination, they all got out of the car and headed to Pettigrew’s apartment complex. Hernandez told Landers that if Landers wanted “this guy” dead, and the guy did not give Landers what he wanted, then Hernandez was going to shoot him, “because you said you want him dead, right?’” In response, “they were, like, ‘Yeah.’” Landers jumped a fence beside Pettigrew’s apartment building and then returned because “some lady” saw him. Landers had gone over the fence to check if Pettigrew’s window was open. If the window had been open, Landers was going to have them all hop the fence and enter Pettigrew’s apartment through the window.
Jennifer Potter (Potter) lived next door to Pettigrew’s apartment, where she thought a woman named Felicia lived. On the night of the shooting, at approximately 9:30 p.m., Potter saw a man walking past her window by means of a walkway that was closed off to tenants and the public. Potter challenged the man. He said he was locked out and was trying to get in his window. She asked how long he had lived there, and the man said, “‘two weeks.’” The man was young, white, and skinny. Potter asked the man not to climb over the fence into the walkway because it made people nervous, and the man apologized. She did not call the police because Felicia had always had a lot of people coming and going. Potter believed she heard a gunshot approximately 20 minutes after she saw the man.
After Landers jumped back over the fence, Hernandez asked to see a floor plan of Pettigrew’s apartment. Landers made one for him out of twigs and small rocks. Hernandez testified that “the plan was always the same: go in, get this guy to give us the coke, and if not, that he was supposed to get shot.”
The three men entered Pettigrew’s building, and Landers lightly turned the door knob of Pettigrew’s apartment. Hernandez told Landers that the door was not locked and that he could push it open, which he did. Landers entered first, then Vigeant, then Hernandez. Once they had quietly entered the dark apartment, either Landers or Vigeant turned on a lamp. Hernandez then saw Pettigrew, but Landers and Vigeant had already gone through another doorway inside the apartment. Hernandez could hear them moving things around, although they were being quiet.
Hernandez saw that Pettigrew was passed out. Pettigrew awoke and saw Hernandez, whom he did not know. He just looked at Hernandez and said nothing. Landers and Vigeant came back in and saw that Pettigrew was awake. “They were, like, ‘Hey, what the fuck? Where is my coke?’” Both Landers and Vigeant were yelling, “Where is the computer. Where is my shit.” They began yelling at Pettigrew, demanding the coke.
Hernandez noticed that Pettigrew was “on something.” Landers asked Pettigrew if he was on Oxycontin, and Pettigrew said he was. Pettigrew said he would call his connection and get the coke. Pettigrew pushed some buttons on his cell phone and Landers’s phone rang. Landers looked at his phone and said “‘What the fuck?... [W]hy are you calling me? Call your dealer.’” Landers and Vigeant continued to demand that Pettigrew get the cocaine, and Pettigrew again attempted to make a phone call. After no more than 20 minutes, Hernandez pulled out his pistol and told Pettigrew he had something that would refresh his memory. Hernandez jammed the pistol into Pettigrew’s right eye socket and said, “‘You need to make your call. Call your dealer. Call whoever you have to call, but get that coke here now.’”
Pettigrew continued to push buttons on his phone. Hernandez told him that he would give him 10 seconds. If Pettigrew had not produced something at the end of those 10 seconds, Hernandez was going to shoot him. Neither Landers nor Vigeant said anything or attempted to stop Hernandez. Neither told him to put the gun away. They continued to yell at Pettigrew saying, “‘When he starts counting and he gets to ten, when he makes it to ten he is going to shoot you, so hurry up, get on the phone, call your dealer and get the coke here right now.’”
Hernandez began counting. He counted very slowly, waiting approximately 10 or 15 seconds between each number. When he got to 10, he shot Pettigrew from a distance of approximately four feet. He did so because that is what Landers and Vigeant had brought him along to do. He did it to back up his fellow marines. At no time during the count did either man say or do anything to register their objection to Hernandez shooting Pettigrew. Landers and Vigeant were telling Pettigrew to come up with the stuff or Hernandez would shoot him.
When Hernandez shot Pettigrew, Landers and Vigeant were shocked. Hernandez believed the shock was not caused by the fact that the shot actually occurred but rather because they were shocked at what they saw—they were not conditioned to see something like that. They knew they were all there to shoot Pettigrew. Landers jumped back and said, “‘Dude, you almost got blood on me.’” Vigeant just stood there with his mouth and his eyes wide open. The three men ran to the car. Landers drove around aimlessly for about half an hour until Hernandez told him that they needed to get back on the freeway. Vigeant was hysterical.
Hernandez explained that, when he said Vigeant was “hysterical, ” he meant that he was speaking very loudly and saying, “‘Do you think, he is dead? Do you think he is dead? We should go back.’” He wanted to see if the police would show up. He was not crying, and Landers was not crying either. Before the shot was fired, neither Landers nor Vigeant told Hernandez not to do it.
Hernandez repeated that after he asked Landers and Vigeant if they wanted Pettigrew killed, they both answered “yes.” Hernandez asked the same question during the trip between Camp Pendleton and Long Beach, when they got to Long Beach, before they left the barracks, and just before they entered Pettigrew’s apartment. Both Landers and Vigeant looked at the gun during the trip, and Vigeant played with it until he was told to stop it.
Hernandez said that when he told defense counsel on cross-examination that he did not intend to kill Pettigrew, he meant that he did not want him dead. It was not up to him. He did not even know him. However, he was willing to kill him because Landers and Vigeant had asked him to do so. The rationale was that Pettigrew was messing with Hernandez’s fellow marines. Hernandez acknowledged that he had previously testified that he shot Pettigrew because Hernandez had given Pettigrew a specific order and Pettigrew had not obeyed it.
After the shooting, the three men drove back to Camp Pendleton, stopping on the way for food at a convenience store. They went to Landers’s room and talked about the shooting. They agreed not to say anything and to pretend they did not know each other. They drank and “hung out” for about three more hours. Landers told Hernandez he should have shot Pettigrew two more times to ensure he was dead.
On the day after the shooting, September 10, 2007, Mauricio Rosales (Rosales) was doing maintenance at Pettigrew’s apartment building. He noticed an apartment door ajar, and he looked inside. Rosales believed that a woman named Felicia lived in the apartment. Rosales saw a man slumped down on the sofa with a cell phone in his right hand. The man was bloody and was not breathing. Rosales called 911.
The fire department and police officers responded to the scene. A nine-millimeter casing and an expended round were collected in the apartment. Dr. Raffi Djabourian, a deputy medical examiner, testified that Pettigrew had a bullet entrance wound at the left temple that exited on the back of the head. The wound was rapidly fatal. The victim was found still holding his cell phone due to a rapid onset of rigor. None of the various drugs found in his system contributed to his death.
Melissa Sandoval, the executive relations coordinator for Verizon Wireless, testified about Pettigrew’s cell phone records from June 24, 2007 through September 9, 2007. Verizon is able to unlock a given individual’s voicemail for police investigations. The records showed calls to and from Landers and Vigeant. The last call was made to Landers on September 9, 2007 at 9:42 p.m. Pettigrew’s telephone service allowed him to do three-way calling, and his records showed he made an overlapping call at 9:43 p.m. that lasted one minute. Telephone records can show the city where a phone is located at the time a call is placed. Sandoval’s records did not show any calls from Vigeant to Pettigrew on September 9, 2007.
Zafar Siddiqui is a network performance manager for AT&T. He explained that “pinging” means that one is “attaching” oneself to the nearest cell tower when one is talking on a cell phone. As a person changes location, the signal is handed off from one cell tower to another. The call is logged by AT&T and sent to a depository. It can be determined which tower was used for a particular call and at what time. He testified about Landers’s and Vigeant’s phone records and about certain cell site records.
Detective Bryan McMahon (Detective McMahon) assisted the homicide detectives assigned to the case by examining Pettigrew’s cell phone records. He investigated cell site hits for telephones linked to Landers and Vigeant. He discovered that the hits on the cell sites during the evening of Pettigrew’s death began near Camp Pendleton and proceeded north along the coast, the No. 5 freeway, the No. 22 freeway, and all the way to Long Beach. A cluster of hits at a certain point led the investigators to go to that location, and they located a gas station near that spot. The investigators obtained footage from the gas station’s security cameras that showed Vigeant, Landers, and Hernandez pulling up to the pumps at 8:40 p.m. They all got out of the car. Vigeant is seen talking on his cell phone, and Landers also used his cell phone. The footage showed Landers driving away from the gas station at 8:51 p.m.
Detective Dennis Robbins (Detective Robbins) assisted in the investigation of Pettigrew’s murder. After Landers was arrested in the Bay Area by United States Marshalls, Detective Robbins interviewed Landers in the Contra Costa County jail on September 27. When shown a photograph of his cousin, Vigeant, Landers said he did not know him. Landers said he did not know Hernandez when shown a photograph of him. Landers said he had not been in Long Beach in the preceding weeks. Landers acknowledged that he was due back at Camp Pendleton on September 24, 2007, and had failed to show up. He said it was because he had been scheduled to go to Iraq on September 28, and he did not want to go.
Detective Scott Lasch (Detective Lasch) was assigned to the Pettigrew murder case along with Detective Malcolm Evans (Detective Evans). They did not find any narcotics or drug-dealing paraphernalia in Pettigrew’s apartment. They found a laptop computer that was registered to Vigeant on the rear seat of Pettigrew’s truck. Detective Lasch discovered that a parking citation was issued to Vigeant on September 6, 2007 (three days before the shooting), in the area of 661 Orizaba Avenue in Long Beach, near Pettigrew’s apartment.
Detective Lasch arranged to have Pettigrew’s voicemail unlocked. Four telephone messages were played for the jury, and jury members were provided with transcripts. Three messages to Pettigrew were from Vigeant and one was from Landers, and they were left shortly before the shooting. Detective Evans testified that there was a distance of approximately one block between the cell site on 7th Street and Orizaba Avenue, near where Vigeant had received a parking ticket, and Pettigrew’s apartment building.
Detective McMahon testified that he made a series of phone calls to Vigeant on September 23, 2007, between 4:32 p.m. and 6:45 p.m. Not all of the calls were answered. An audio recording of the calls was played for the jury. Detective Evans reviewed Pettigrew’s cell phone records and subsequently placed two calls to Landers’s number. An audio recording of the detective’s conversation with Landers on September 21, 2007, was played for the jury.
After the shooting, Hernandez tried to break his connection with Landers and Vigeant by avoiding them. Hernandez was disgusted by what he had done. Both Landers and Vigeant approached Hernandez and told him that Long Beach police had been trying to contact them. At one point, Landers told Hernandez that Vigeant was acting “really, really squirrely” and asked Hernandez what he wanted to do about him. Hernandez said he would talk to Vigeant. Hernandez interpreted Landers’s words as a request or suggestion that Hernandez should kill Vigeant. Hernandez tried to let Landers know that he was not going to kill a fellow marine.
Detective McMahon interviewed Hernandez on September 28, 2007. He initially denied going to Long Beach. After being told that another suspect was in custody, Hernandez related the events on the night of the murder. An audio recording of Hernandez’s interview was played for the jury.
Detective McMahon retrieved Hernandez’s gun from a location in Tempe, Arizona, where Hernandez had directed him to look. The gun was a Browning high-power nine millimeter weapon (People’s exhibit 20). Troy Ward, a criminalist with the Long Beach Police Department, confirmed that Hernandez’s firearm matched the shell casing found at the scene of Pettigrew’s shooting.
DISCUSSION
I. Sufficiency of Evidence Corroborating Hernandez’s Testimony
A. Appellants’ Arguments
According to Landers, the rules governing accomplice testimony mandate that there was insufficient evidence to sustain his convictions for first-degree murder or felony murder, attempted robbery, and burglary. He also maintains there was insufficient corroborative evidence to sustain the true findings on the special circumstance allegations.
Vigeant’s argument focuses on the issue of intent and contends that Hernandez’s testimony provided the only evidence that Vigeant had the intent necessary to be guilty of the charged crimes. According to Vigeant, Hernandez’s testimony was inconsistent and insufficiently corroborated and led to only a mere suspicion of Vigeant’s guilt rather than proof beyond a reasonable doubt.
Landers and Vigeant both join in the arguments of the other to the extent that the argument inures to his benefit.
B. Relevant Authority
Section 1111 provides in pertinent part: “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; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Thus, the testimony of an accomplice “has been legislatively determined never to be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated.” (People v. Tewksbury (1976) 15 Cal.3d 953, 967.)
“To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence, ’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.]” (People v. Avila (2006) 38 Cal.4th 491, 562–563.)
Adequate corroboration of an accomplice’s testimony need not in itself be sufficient to convict the defendant; it may be slight and entitled to little consideration when standing alone. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128; People v. Douglas (1990) 50 Cal.3d 468, 507.) It need only “tend[] to connect the defendant with the crime so that the jury may be satisfied that the accomplice is telling the truth.” (People v. Douglas, supra, at p. 506, fn. omitted.) The corroborating evidence may be circumstantial and may consist of a defendant’s conduct or statements. (Id. at p. 507.) It thus may be evidence that shows a consciousness of guilt. (People v. Hurd (1970) 5 Cal.App.3d 865, 875.)
The corroborating evidence must tend to connect the defendant to the crime, but it has to neither establish every element of the offense nor corroborate all of the accomplice’s testimony. (People v. Heishman (1988) 45 Cal.3d 147, 164–165.) Although the corroborating evidence need only tend to connect the defendant to the crime, it must do more than raise a mere conjecture or suspicion of guilt. (People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto).) “[I]t is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators. [Citations.]” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)
“‘The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 505; People v. McDermott (2002)28 Cal.4th 946, 986; People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303.)
C. Evidence Sufficient
Hernandez was an accomplice as a matter of law, and the jury was so instructed. The jury was also instructed on the type of evidence needed to corroborate his testimony. We disagree with appellants and conclude there was sufficient independent evidence that tended to connect Landers and Vigeant with the burglary, attempted robbery, and murder to the degree that the jury reasonably could be satisfied that Hernandez was testifying truthfully. (People v. Douglas, supra, 50 Cal.3d at p. 506.) Therefore, there was sufficient evidence of Lander’s and Vigeant’s participation in the murder under a theory of premeditated murder and felony murder, and the jury verdicts and findings must be upheld.
CALJIC No. 3.12 provides, “To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. [¶] However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. [¶] In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. [¶] If there is no independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. [¶] If there is independent evidence which you believe, then the testimony of the accomplice is corroborated.” (CALJIC No. 3.12.)
The first suspects to be contacted by the police were Landers and Vigeant. By means of Pettigrew’s cell phone records, the investigating officers established that calls were made from Landers’s and Vigeant’s cell phones to Pettigrew on the night of his death and two days before his death. The content of the messages left on Pettigrew’s cell phone was incriminating. Two days before the shooting, Vigeant said: “Hey what’s up brotha. I know you know who this is. It’s fuckin’ Tony. And dude, fuckin’, eh-heh, if you don’t stop playing games, it’s gonna get ugly dude. And, fuckin’, I’m gonna come to your house. And it’s gonna be all bad. So hit me back, ASAP. Late.” (Italics added.) Fifty-three minutes later, Vigeant left the following message: “Dave you better fuckin’ hit me back right now dude. Fuckin’, me and my cousin, we ain’t playin’ dude. You fuckin’ hit us back up or I’ll fuckin’ find your ass dude. Hit me up. Late.” (Italics added.) In between Vigeant’s two messages, Landers left a message stating, “Hey Dave, you better fuckin’ call me back bro.’” Shortly after midnight, on September 8, 2007, Vigeant left the following message: “Dave, don’t even play dude. Fuckin’, me and my b-me and my homeboy Tre, fuckin’, are ready to rumble dude. Fuckin, pick up your phone dude or it’s gonna get ugly. Just to let you know. Nobody fuckin’ robs me dude. No one. So, it’s in your best interest to pick up your phone, otherwise it’s gonna get really ugly, and we know where to find you. Not only at your apartment, but we got fuckin’ military fuckin’ aspect. Fuckin’, we know where to look man. You’re fucked if you try to run. Alright... Hit me up. See if I’m playing. Late.” (Italics added.)
These voicemail messages corroborated Hernandez’s testimony that he heard both appellants making threats to Pettigrew. They also provide evidence of appellants’ state of mind as they traveled to see Pettigrew. The calls independently show that Pettigrew had something that Landers and Vigeant wanted, and Vigeant particularly felt he had been cheated. Both showed their intent to go to Pettigrew’s apartment and harm him unless they got what they wanted from him. This, in combination with independent evidence that a man answering Landers’s description was seen in a restricted area outside Pettigrew’s window is corroborative of the intent to commit burglary and a home invasion robbery in order to obtain the item or items Pettigrew had and that appellants wanted, which Hernandez’s testimony indicated was cocaine. The fact that Vigeant did not once mention his laptop in his phone messages was independent evidence of his intent to go to Pettigrew’s for a different purpose than to seek return of his laptop as he alleges. “‘Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted... to show the motive and state of mind of the defendant’ [citations], ” especially when a defendant is accused of unlawful conduct against the same person. (People v. San Nicolas (2004) 34 Cal.4th 614, 668; see also Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585; People v. Daniels (1971) 16 Cal.App.3d 36, 46.)
The lies that Landers and Vigeant told investigating detectives, as related in the facts portion of this opinion, and Landers’s flight also served as corroborating evidence. Evidence of flight or an attempt of the accused to conceal one’s identity supports an inference of consciousness of guilt sufficient to corroborate the testimony of an accomplice. (People v. Perry (1972) 7 Cal.3d 756, 771–772; People v. Felton (2004) 122 Cal.App.4th 260, 272; People v. Ruscoe (1976) 54 Cal.App.3d 1005, 1012; People v. Hurd, supra, 5 Cal.App.3d at pp. 875–876.) False and contradictory statements of a defendant in relation to the charge are themselves material corroborative evidence. (People v. Santo (1954) 43 Cal.2d 319, 330; People v. Taylor (1924) 70 Cal.App. 239, 244.) Detective Evans asked Landers by telephone if he had spoken to a David Pettigrew late the prior Sunday, which was September 9, 2007, the day of the shooting. Landers said he had called Pettigrew, and the time of the call was 3:00 or 3:30 p.m. When asked if he knew what happened to Pettigrew, Landers said his sister had called him about the matter. He said he had only known Pettigrew as his sister’s friend’s boyfriend, and he had only seen them “a couple times.” Landers said he was on base at Pendleton when he called Pettigrew. He said he did not speak with Pettigrew long and called only to ask the whereabouts of his sister, who was supposed to be in Long Beach. Landers said he never was able to contact his sister. Landers said Pettigrew sounded tired, and his speech was slurred. Landers said, “Uh, I have to be honest, I really don’t know the guy at all.” He said he had never been to his apartment and did not know where he stayed. According to Landers, before the call on the 9th, Landers had not spoken to Pettigrew or seen him for several months.
Landers told Detective Evans that he had never had problems with Pettigrew. No one else had used Landers’s phone, and Landers had his phone at all times. No one was with Landers when he telephoned Pettigrew. Landers could not give Detective Evans his sister’s phone number because he did not know it. Landers said he had stayed on the base all day on Sunday, September 9, 2007.
In his second phone call to Landers, Detective Evans told Landers that the phone records showed that he called Pettigrew at 9:42 p.m. Landers said he did not remember calling him then—at that time he was still on the base, and he was the only person who had use of his phone. He was in his room the whole time. He then agreed the call could have been later. He said he had never visited Pettigrew and he did not “even know him. He’s my, fuckin’, sister’s friend’s boyfriend.”
Vigeant’s attitude and evasiveness with Detective McMahon and his obvious lies also showed consciousness of guilt and served as corroborating evidence. Vigeant did not seem surprised to receive a call from a detective with the Long Beach Police Department, and he exchanged pleasantries with the detective, beginning with “How’s it going man?” when the detective introduced himself. When asked if he knew anybody that had recently been murdered down in Long Beach, Vigeant merely replied, “Negative.” When told that the guy’s name was David and asked if the name rang a bell, Vigeant said “Yes.” When Detective McMahon then asked “What’s that?” Vigeant said he had left his laptop “down there.” He said David was his cousin’s friend. He then said his cousin, named Trevor Landers, had met David a couple of times. Vigeant said he lent Pettigrew the laptop “a couple of months” earlier. Vigeant denied several times having spoken to Pettigrew on his phone just after midnight on September 8, 2007. He said he had never been to Pettigrew’s home in Long Beach. Vigeant said that Landers knew Pettigrew from school. When the detective asked Vigeant how he could be contacted, Vigeant replied that he had just moved into his barracks two weeks earlier and was not sure the detective could contact him there. When asked again about phone calls to Pettigrew, Vigeant claimed he had lent his phone to a friend named Hernandez, but Hernandez did not know Pettigrew. Vigeant had not seen Pettigrew in “probably like a month.”
After a lengthy period of conversation, Vigeant expressed no curiosity when the detective stated that he was trying to figure out what happened to Pettigrew. Vigeant merely replied, “Yeah.” When the detective told Vigeant that Pettigrew was murdered, Vigeant expressed surprise (although Detective McMahon had said at the beginning of the conversation that a man named David was murdered in Long Beach). Vigeant told the detective that he had gone to a going-away party at the home of a Corporal Schrader on September 8, 2007, a Saturday. He was at the party from 4:00 or 5:00 p.m. until 1:00 or 2:00 the next morning. He said he called Pettigrew from the party to ask for his laptop. In a subsequent phone call, Detective McMahon clarified to Vigeant that the murder took place on Sunday, September 9. Vigeant said he was alone that day, “just chilling.” As noted, false and contradictory statements of a defendant regarding the offense are material corroborative evidence. (People v. Santo, supra, 43 Cal.2d at p. 330; People v. Taylor, supra, 70 Cal.App. at p. 244.) Even if the corroborating circumstances are consistent with the innocence of the accused, the determination as to whether the corroborating evidence is as compatible with innocence as it is with guilt is a question of weight for the trier of fact. (People v. Gallardo (1953) 41 Cal.2d 57, 63, fn.†; People v. Ruscoe, supra, 54 Cal.App.3d at p. 1012.)
Vigeant’s and Landers’s connection to Pettigrew was further enhanced by the evidence that on September 6, 2007, a parking ticket was issued on Vigeant’s car. The car was parked on Orizaba Avenue, near Pettigrew’s apartment. Although it is stronger evidence against Vigeant, the telephone conversations of both appellants reveal that they were both after Pettigrew, and they were phoning him to resolve their problem with him. In addition, Vigeant’s laptop computer was found in the rear seat of Pettigrew’s truck, which corroborated Hernandez’s testimony about the laptop having been given as collateral for a cocaine deal. The presence of the laptop also corroborated Hernandez’s testimony about the motive for the shooting. Landers and Vigeant had vowed to get the cocaine they were owed, and for which the laptop had been held by Pettigrew, or to have him shot.
More corroborative evidence was provided by the cluster of phone calls that led police to the video footage of Landers, Vigeant, and Hernandez at the gas station in Garden Grove, on the way to Long Beach from Camp Pendleton. Both the front passenger and the driver, identified in court as Landers and Vigeant, were using their cell phones during this stop. Landers was wearing a green baseball cap, which corroborates Hernandez’s testimony that Landers jumped the fence into the prohibited area behind Pettigrew’s apartment in an attempt to enter through a window at approximately 9:30 p.m. that night. The description of the intruder that Potter saw corresponded to Landers, including the fact that the intruder wore a baseball cap. The video places the three men together approximately one hour before the shooting and confirms Hernandez’s testimony about stopping at the gas station. It also confirms the accuracy of the cell-site tracking of the calls Landers and Vigeant made to Pettigrew—calls that show their eventual arrival in Long Beach near Pettigrew’s apartment. Landers left the gas station at 8:51 p.m. Pettigrew was shot a little after 9:42 p.m., when he made his mistaken call to Landers instead of his dealer.
Potter heard a gunshot approximately 20 minutes after she saw the intruder at Pettigrew’s window at approximately 9:30 p.m. The last outgoing call on Pettigrew’s cell phone was to Landers at 9:42 p.m. Pettigrew was shot shortly thereafter.
Moreover, the fact that Pettigrew’s last outgoing call was to Landers’s cell phone corroborates Hernandez’s testimony that Pettigrew mistakenly called Landers’s number when he said he would call his dealer. According to Hernandez, Landers’s phone rang as Landers stood in front of Pettigrew, just before Hernandez became frustrated and began his deadly countdown. This cell phone record also confirms Hernandez’s testimony about the impetus for Landers’s and Hernandez’s frustration that led to Pettigrew’s death. The fact that Pettigrew was found seated on the sofa, still grasping his cell phone, with a single gunshot wound to his head and the discovery of one expended bullet, as independently testified to by Rosales and Officer Carlos Del Real, all corroborated Hernandez’s account of the murder. These independent facts also corroborated the attempted home-invasion robbery, since it showed that Landers and Vigeant, true to their threats, were determined to take what they wanted from Pettigrew—the cocaine—by force and/or fear. Although nothing was ultimately taken from Pettigrew’s apartment, the corroborative value of these independently offered facts is not negated.
Other circumstantial evidence corroborated Hernandez’s account. There was testimony that Pettigrew’s apartment showed no sign of forced entry, which aligned with Hernandez’s testimony that the three of them entered the apartment through an unlocked door. Hernandez’s account of the actual shooting was corroborated by Dr. Raffi Djabourian, the deputy medical examiner, who testified that Pettigrew had a bullet entrance wound at the left temple that exited on the back of the head. Dr. Djabourian also testified that Pettigrew was found still holding his cell phone.
The corroboration evidence in this case thus established, at a minimum, motive and opportunity, which, when corroborated, were found to be sufficient factors to sustain convictions largely based on accomplice testimony in Szeto, supra, 29 Cal.3d at pages 28–29 and People v. Vu (2006) 143 Cal.App.4th 1009, 1022–1023, 1024 (Vu). In Szeto, the defendant was convicted of being an accessory to a felony and possession of a sawed-off shotgun. (Szeto, supra, at p. 25.) The convictions were largely based on the evidence of an accomplice, Chester Yu, who testified that defendant put the pieces of guns that had been used in a shooting in the trunk of his car and, accompanied by Yu, drove the guns to the San Francisco bay and dumped them in the water. (Id. at p. 27.) It was independently established, by means of a police officer’s testimony, that defendant had a motive to help the shooters because he was in the same gang that orchestrated the shooting to gain revenge for a fellow gang member’s slaying. (Id. at p. 28.) The testimony of three other witnesses “bore upon defendant’s opportunity to commit the crimes.” (Ibid.) The persons to whose home the killers had free access, the Rodriguezes, and one other person, testified that the guns were in a closet in the home on a Saturday night. The Rodriguezes testified that the defendant brought soup to the home on Sunday morning, and the guns were not in the closet on Sunday evening. (Ibid.) Yu also testified that the defendant said he knew where to dump the guns because he had worked in a nearby restaurant, and the testimony of the restaurant assistant manager confirmed the defendant’s past employment. (Id. at pp. 27–28, 29.) The California Supreme Court held that, “[b]ecause the corroborating evidence does tend to connect defendant with the commission of the crimes of which he has been convicted, we must uphold the jury’s verdict.” (Id. at p. 29.)
In Vu, the defendant was convicted of street terrorism, conspiracy to murder and the first-degree murder of a 14-year-old Hispanic boy, Fernandez, who was not a gang member. (Vu, supra, 143 Cal.App.4th at pp. 1012–1013.) Vu was an admitted member of an Asian gang, and he had been attacked a few years earlier by a rival Asian gang. Vu’s best friend had been killed in the attack. (Id. at pp. 1013–1014, 1016, 1022.) Fernandez and some friends were riding in a taxi and were fired upon when they alighted. The shooters were the occupants of a following car. (Id. at p. 1015.) One of the taxi riders identified Jack San as one of the shooters. (Ibid.) San linked Vu with the shootings by saying that a person riding in a car with San called Vu and told Vu to check who was riding in the taxi. (Id. at p. 1018.) Vicki Bui, who was associated with Vu’s gang, testified that Vu told her to give him an alibi for the night of the shooting—an alibi he used in his police interview. (Id. at pp. 1020, 1022.) The Vu court held that “independent evidence sufficiently corroborated accomplice testimony by establishing motive and opportunity, placing Vu with the conspirators on the night of the murder, and showing he gave the police a false alibi after the crime.” (Id. at pp. 1013, 1022.)
As noted, motive, opportunity, and false alibis were shown independently in this case as well. Vigeant admitted that he had “lent” Pettigrew his laptop, which was one of the motives for the trip to Pettigrew’s with Hernandez. The threatening cell phone records also showed motive of a different sort. Opportunity was independently shown by the video of Landers and Vigeant at the gas station on their way to Long Beach. Their route was confirmed by the hits on the cell phone towers along the way.
Finally, in order to cast doubt on the jury’s verdicts and findings, Landers argues at length about the lack of corroborating evidence of the attempted home invasion robbery and the burglary. Landers attempts to show that, because there was insufficient corroborating evidence of the attempted robbery, there was insufficient evidence of the burglary to commit any felony other than murder. Landers points out that felony murder cannot be based on an assaultive crime such as murder. (See People v. Green (1980) 27 Cal.3d 1, 59–62; People v. Wilson (1969) 1 Cal.3d 431, 440–442, overruled prospectively in People v. Farley (2009) 46 Cal.4th 1053, 1117–1121.) Landers argues that, since we cannot know if the jury based its guilty verdict on the felony murder theory or the premeditated murder theory, the murder convictions must be reversed along with the convictions for attempted robbery and burglary. This alleged lack of corroborating evidence of the attempted robbery and thus the burglary also would have the by-product of invalidating the special circumstance allegations, according to Landers. As we have indicated, we disagree. We also disagree that the jury was misinstructed on the “unsupported” theories of attempted robbery-murder and burglary-murder. We believe that the record shows sufficient corroboration of Hernandez’s testimony, which provided sufficient evidence that an attempted home-invasion robbery took place, since Landers and Vigeant searched Pettigrew’s apartment before demanding the cocaine from him at gunpoint. And it is clear that a burglary occurred when Landers and Vigeant entered the apartment with the intent to take the cocaine, which they had not paid for, even though they had left the laptop as collateral.
In sum, we conclude that Hernandez’s testimony was sufficiently corroborated to support Landers’s and Vigeant’s convictions for first degree murder, attempted robbery, and burglary. Appellants’ lies to authorities, their flight, and their phone calls are independent evidence corroborating all of the crimes associated with that ill-fated expedition to Pettigrew’s. That Landers and Vigeant tried to break in a window rather than knock on Pettigrew’s door is independent evidence that corroborates the burglary and attempted robbery counts shown by Hernandez’s testimony. The circumstantial evidence in this case supports the inference that Landers and Vigeant entered Pettigrew’s apartment with the felonious intent to take the cocaine by force and by instilling in Pettigrew the fear of being shot. “The corroboration required of accomplice testimony... need only connect the defendant to the crime sufficiently that we may conclude the jury reasonably could have been satisfied that the accomplice was telling the truth. Moreover, the corroborating evidence may be circumstantial, of little weight by itself, and related merely to one part of the accomplice’s testimony. [Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 185–186.) Therefore, felony murder instructions were properly given and the special circumstance findings are justified. Appellants’ arguments are without merit.
II. Alleged Prosecutorial Misconduct
A. Landers’s Argument
Landers argues that the prosecutor engaged in prejudicial misconduct when he chose to misstate the law in his rebuttal argument. The prosecutor told the jurors that Landers could not legally assert a claim of right to the computer in Pettigrew’s possession, which was owned by Vigeant. Because the theory of the case was premised on aiding and abetting, the prosecutor’s argument was legally wrong. A claim-of-right defense is applicable to attempted robbery and burglary premised on larceny when a defendant believes the property belongs to a coprincipal. Landers points out that an earlier jury hearing his case deadlocked on the issue of intent to steal at the time of entry to Pettigrew’s apartment.
Lander’s and Vigeant’s cases were originally severed because Vigeant’s attorney was unavailable. After Landers’s jury deadlocked, the trial court granted the prosecution motion for joinder.
B. Relevant Authority
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (Ibid.) “[W]e ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
Even if a defendant shows that prosecutorial misconduct occurred, reversal is not required unless the defendant can demonstrate that it was reasonably probable a result more favorable to him would have occurred absent the misconduct or with a curative admonition. (People v. Arias (1996) 13 Cal.4th 92, 161.)
C. Proceedings Below
The jury was instructed on the felony murder doctrine with CALJIC Nos. 8.21 and 8.27. In explaining this theory to the jury, Landers’s counsel stated that the crimes of burglary and robbery were the cornerstones of felony murder related to the crime of theft. He then explained the claim-of-right defense described in CALJIC No. 9.44. Counsel told the jury members that, if they believed the two defendants went to Pettigrew’s to recover the computer, then there was no theft involved, no intent to commit the theft, and therefore, no robbery, burglary, or felony murder.
The trial court read CALJIC No. 9.44 to the jury as follows: “An element of the crime of robbery or theft by larceny is a specific intent permanently to deprive the alleged victim of his or her property. That specific intent does not exist if the alleged perpetrator had a good faith claim of right to title or ownership of the specific property taken from the alleged victim. In other words, if a perpetrator seeks to regain possession of property in which he honestly believes he has a good faith claim of ownership or title, then he does not have the required criminal intent. [¶] However, the required criminal intent exists if, rather than seeking recovery of the property, the perpetrator attempted to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated, specifically intends permanently to deprive the alleged victim of his or her property in furtherance thereof. [¶] Claim-of-right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal. [¶] If, after consideration of all the evidence, you have a reasonable doubt that defendant possessed the required specific intent, you must find him not guilty of the crime of robbery or theft by larceny.”
In his rebuttal argument, the prosecutor briefly addressed the claim of right defense stating, “If there was a claim, first of all, Mr. Landers wouldn’t have the claim because no one suggested it was or was ever his computer. Mr. Vigeant, of course, the only information we have from him is that that computer is turned over. Now, I am talking about his own statements to the detective, in which he does so in that statement immediately. We are going to talk about the unnatural way that that comes up.”
Further along in the prosecution’s rebuttal, Landers’s counsel asked to approach the bench. Counsel stated at sidebar, “I’m real hesitant to interrupt, but just seemed like the best point to do it. I think counsel made a misstatement of law earlier that, if not corrected, verdict against the defendants results in reversal. He indicated that the defense of claim of right would not apply to Mr. Landers, basically, if, not saying so many words, inferring because it is not his property. I think that that is a misstatement of law that needs to be corrected. Number one, I think under the rules of agency, Mr. Landers has the same defense as Mr. Vigeant. And, number two, the whole issue is whether or not there is the intent to steal and whether or not in the mind of Mr. Landers he has an honest belief he has a right to recover the property.”
The prosecutor responded that he did not know if any rules of agency applied, but he had been trying to argue that the computer at that point did not belong to either of the defendants anyway. The trial court stated that it was going to instruct the jury that “if attorneys have stated law that is incorrect, court’s previous reading—you must follow the court’s previous reading.” The prosecutor expressed his intent to explain the same concept and, with the court’s permission, told the jury, “If I, and I know that counsel both as well, if either of us states something in terms of the law in the instructions that in any way is different from the instructions given to you by the court, you, of course, accept the instruction given by the court. I think we are all doing our best in good faith to argue the instructions, what their meaning is, how you apply them to the facts. But if I have misstated any of those in any way or any wording, what we do is governed by the instructions the court gives you.” Upon resuming argument, the prosecutor said, “This is what we mentioned before. What we have to say to you as attorneys is not evidence.... [I]f you heard it here first, it is not evidence.”
D. No Prejudice
It is true that the prosecutor misspoke when he stated that Landers could not rely on the claim-of-right defense under the defense theory that Landers and Vigeant went to Pettigrew’s to retrieve Vigeant’s laptop computer. (See People v. Williams (2009) 176 Cal.App.4th 1521, 1528–1529 [“a good faith belief by a defendant, tried as an accomplice, that he was assisting his coprincipal retake the principal’s property negates the ‘felonious intent’ element of both larceny and robbery”].) Nevertheless, under the circumstances of this case, the trial was not thereby infected with such unfairness that the convictions constituted a denial of due process. (See People v. Samayoa, supra, 15 Cal.4th at p. 841.) Nor did the prosecutor, in this offhand remark, seek to use a deceptive or reprehensible method in an attempt to persuade the jury. (Ibid.)
Any remark by a prosecutor during closing argument must be viewed in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.) The prosecutor argued strenuously that it was not the computer that Landers and Vigeant were so determined to obtain when they went to Pettigrew’s that night. It was the cocaine. Appellants had no claim of right defense to the cocaine. (See People v. Hendricks (1988) 44 Cal.3d 635, 642 [claim-of-right defense does not apply to claims based on illegal activities].) In his opening statement, the prosecutor presented the People’s theory as showing that the victim “died because whatever deal that they had in place, they were unsatisfied with what he had done, and they went to his home that day in order to take what they wanted, whether it was drugs or money or whatever they felt that they were owed. And that after making the demand, they didn’t get what they wanted, so he was killed.” In opening argument, the prosecutor stated, “Mr. Pettigrew, however high he was at the time, didn’t sacrifice his life simply because he didn’t want to produce this cocaine. It was because he didn’t have it, he couldn’t at that time.” In closing argument, the prosecutor stated, e.g., “but what counsel did is, well, he said Mr. Schreiner [the prosecutor] has to prove beyond a reasonable doubt that this wasn’t about a computer. Again, we are having some twisting of what the elements are. You have the elements to the defenses. What we have to prove beyond a reasonable doubt, a reasonable doubt, that a murder was committed, that it was committed by either premeditation or in the course of felony, both of which exist, and further, that each of these defendants is liable for the actions of the others by being aiders and abettors, and by being coconspirators, all of which are present.”
Later, the prosecutor stated, “I think one of the attorneys made a comment that people don’t get killed over a laptop computer. And that’s true. That’s not what this is about. This is about cocaine that he was to provide that he did not provide in a timely fashion, and that resulted in his death.” The prosecutor pointed out that Pettigrew did not make a phone call in order to locate a computer that was 40 feet away in his truck. He made a call because the defendants were “in front of him demanding that he make it and to supply them with the drugs that they are asking for.” The prosecutor pointed out that the defendants had made a great number of calls to Pettigrew between September 5 and 6, before the murder, when they were in the vicinity of his home. The prosecutor stated they were “angry when they don’t get him. They are angry because he owes them cocaine, and they want that.” In closing, the prosecutor argued that Hernandez committed the crime out of loyalty to his fellow marines, and the defendants did so “because of this drug deal that the victim didn’t come through on.”
The prosecutor also cautioned the jury before rebuttal argument that “what we have to say as attorneys is not evidence.” And “if it was from up here from this lectern or some representation was made, it did not occur from the witness stand or doesn’t show up in the documents that you have or the records, it is not evidence.” The prosecutor admonished the jurors again after the sidebar, as noted previously. Moreover, the trial court also instructed the jury that if the attorneys said anything concerning the law during their arguments that was different from the instructions given, the jury should accept the law as stated in the court’s instructions. As noted previously, the trial court read CALJIC No. 9.44 on the claim-of-right defense to the jury. Finally, there was strong evidence presented through the voicemails to Pettigrew from Landers and Vigeant and from the testimony of Hernandez that the defendants went to Pettigrew’s apartment looking for the cocaine they had been promised rather than Vigeant’s laptop.
Given the brevity of the misstatement and the subsequent admonitions to the jury as well as the evidence that the defendants were on a quest to obtain the cocaine, appellants suffered no prejudice from any misconduct. It was not reasonably probable that a result more favorable to appellants would have occurred absent the prosecutor’s misstatement.
III. Admission of Vigeant’s Prior Statement
A. Landers’s Argument
Landers argues that Vigeant’s comments to police in telephone calls made weeks after the shooting in which he referred to Landers by name and as his cousin directly incriminated him (People’s exhibits 33, 33A). Citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Bruton v. United States (1968) 391 U.S. 123 (Bruton), and People v. Aranda (1965) 63 Cal.2d 518 (Aranda), he contends that admission of the statements denied him his federal and state constitutional rights to confront and cross-examine Vigeant, who did not testify.
Under Crawford specifically, Landers claims that the telephone calls in question were testimonial in nature. Vigeant had been identified as a potential perpetrator of the murder, and the police made a pretextual phone call in which they pretended to be merely seeking information. In fact, they wished to obtain incriminating evidence for a later trial. Vigeant was unavailable to testify, since he was on trial for the same crimes as Landers and chose not to testify, and it is undisputed that there was no prior opportunity to cross-examine Vigeant. Therefore admission of the statements in the telephone calls violated Landers’s Sixth Amendment right to confrontation under Crawford, and the statements in their entirety required exclusion.
Under Aranda/Bruton, Landers argues that the statements in Vigeant’s telephone calls with Detective McMahon painted him (Landers) as the person who introduced Vigeant to Pettigrew and the person who was with Vigeant when the laptop computer was handed over to Pettigrew. These statements by an accomplice constituted hearsay that does not fall within a firmly rooted exception to the hearsay rule and does not contain sufficient guarantees of reliability such that adversarial testing would be expected to add little, if anything to the statement’s reliability. (See White v. Illinois (1992) 502 U.S. 346, 356–357.) Thus the statements incriminated Landers, and their use at trial violated his Sixth Amendment right to confront witnesses.
According to Landers, admission of the statements also violated independent state evidentiary grounds. Assuming Vigeant’s statements were admitted as statements against penal interest, all portions of the statements were not “‘specifically disserving’” to Vigeant as required by People v. Duarte (2000) 24 Cal.4th 603, 612, and the portions implicating Landers should not have been admitted. Landers argues that, under Williamson v. United States (1994) 512 U.S. 594, Vigeant’s conversations cannot be looked at as a whole, but rather, each statement in the larger narrative must be examined. It was necessary to parse the words of Vigeant’s conversation and redact all portions that were not self-inculpatory. (Id. at pp. 599–601, 602.)
As Landers notes, the prosecutor did not state a basis for admission of the two telephone calls between Vigeant and Detective McMahon. Neither the trial court nor defense counsel asked the prosecutor to state the basis for admission of this evidence, nor did defense counsel challenge it.
Landers asserts that reversal is required because the evidence was inherently prejudicial, and the presumption of prejudice cannot be rebutted. Citing Richardson v. Marsh (1987) 481 U.S. 200, 207 (Richardson), he contends that the fact that the jury was admonished not to consider the evidence against Landers cannot be considered in a determination of prejudice caused by Aranda/Bruton error. Citing People v. Song (2004) 124 Cal.App.4th 973, 984, Landers argues that because there is both Crawford error and Aranda/Bruton error, the limiting instruction given by the trial court was insufficient to eliminate Crawford error. He adds that the case against him was relatively weak, as evidenced by his deadlocked jury in a prior trial. Landers also contends that, if defense counsel forfeited the issue at trial, counsel was by definition ineffective in doing so.
B. Proceedings Below
Before the prosecutor played a recording of the telephone conversation between Vigeant and Detective McMahon, Lander’s counsel stated to the trial court that he had just noticed there were references to his client in the transcript of the call. Counsel stated, “I don’t think it is a serious Aranda situation; however, I would ask that the jury be advised that it is only to be used as to Mr. Vigeant.” The trial court clarified, “So your only request on behalf of Mr. Landers is, in relation to the pretext call from Mr. Vigeant, that there will be limited instruction that that evidence is only to be used against Mr. Landers?” Counsel confirmed this.
The prosecutor stated, “I know the court is going to put a copy of the transcript in the record. And I just want to be clear, I am playing this and any other statements because I don’t believe there is any Aranda/Bruton issue. The cousin is mentioned, but not in an incriminating way.” The trial court pointed out that the only thing Landers was requesting was a special limiting instruction.
Detective McMahon testified and laid the foundation for his phone calls to Vigeant. The trial court admonished the jury as follows: “This is a purported statement, a conversation with defendant Vigeant. This evidence is only being introduced against defendant Vigeant; you are not to use it in any way against defendant Landers.”
Landers was mentioned only a few times throughout Detective McMahon’s first telephone conversation with Vigeant, which was contained in 27 pages of transcript. Vigeant said his cousin (Landers) knew Pettigrew and that Pettigrew was his cousin’s friend. Vigeant then said his cousin had met Pettigrew a couple of times, and Vigeant gave Detective McMahon his cousin’s first and last names when asked. Later on in the conversation, when asked, Vigeant again stated that he knew Pettigrew through his cousin Landers. When asked how his cousin knew Pettigrew, Vigeant said he thought they met through school or something like that. When asked if he knew the last time his cousin saw Pettigrew, Vigeant said he was not sure. The detective asked Vigeant if Landers was living in Northern California, and Vigeant replied that he was not sure where he was because he had not gotten in touch with him in a couple of days. The detective asked Vigeant if he had talked to Landers about Pettigrew, and Vigeant said he had not talked to him at all. In the second conversation, Detective McMahon asked Vigeant, “Alright, and you said it was Trevor [Landers] and you and him that met at the pizza place?” Vigeant replied, “Yes.” Landers was not mentioned during the rest of the second conversation, which is contained in seven pages of transcript.
C. Forfeiture
As we have noted, Landers’s counsel did not object at trial to admission of Vigeant’s statements on Aranda/Bruton, Crawford, or state evidentiary grounds. Landers cannot complain for the first time on appeal on these grounds. (Evid. Code, § 353; People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant’s failure to raise confrontation clause claim at trial forfeits issue on appeal]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028 [same]; People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Mitcham (1992) 1 Cal.4th 1027, 1044 [finding waiver of Aranda/Bruton objection].) The United States Supreme Court noted in its opinion in Crawford that the defendant raised a timely objection that admission of his non-testifying wife’s prior statements “would violate his federal constitutional right to be ‘confronted with the witnesses against him.’” (Crawford, supra, 541 U.S. at p. 40.) Nothing prevented Landers from doing the same. Even if this failure is overlooked, however, the claims lack merit.
D. Relevant Authority
The confrontation clause of the Sixth Amendment of the United States Constitution provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” (Crawford, supra, 541 U.S. 42.) The phrase “‘witnesses against him’” is not limited to in-court witnesses, but also applies to admission of hearsay statements. (Id. at pp. 50–51.) The confrontation clause has traditionally barred “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53–54.) “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822.)
Under Bruton and Aranda, a statement of a non-testifying codefendant at a joint trial is generally inadmissible if it implicates the defendant, because the defendant cannot cross-examine the non-testifying codefendant. (Bruton, supra, 391 U.S. at pp. 135–136; Aranda, supra, 63 Cal.2d at p. 526.) Bruton’s holding was predicated on the confrontation clause contained in the federal Constitution. (Bruton, supra, at p. 136.) Aranda’s holding was a judicially declared rule of practice implementing section 1098, which governs joint trials. (Aranda, supra, at pp. 524–526.) The Bruton court cited with approval the California Supreme Court decision in Aranda. (Bruton, supra, at pp. 130–131.) The Aranda /Bruton rule applies not only to confessions but to incriminating statements not amounting to confessions. (People v. Anderson (1987) 43 Cal.3d 1104, 1123.) As a result of Bruton, the decision in Aranda, which did not articulate a constitutional requirement, is now recognized as a constitutionally based doctrine, at least in part. (People v. Mitcham, supra, 1 Cal.4th 1027, 1045.)
The Aranda/Bruton rule was limited by Richardson, which required that the accomplice testimony be incriminating on its face. (Richardson, supra, 481 U.S. at pp. 208, 209; see also People v. Fletcher (1996) 13 Cal.4th 451, 463.) In Richardson, a redacted confession of a codefendant passed constitutional muster because it omitted any reference to the codefendant and suggested only the declarant and a third party, who was not the codefendant, had been involved in the crime. (Richardson, supra, at p. 203.) Since the accomplice’s statement was not incriminating on its face and became so only when linked with evidence introduced later at trial, its admission was constitutionally sound. (Id. at p. 208.)
Improper introduction of a codefendant’s out-of-court statement requires reversal only if the error was not harmless beyond a reasonable doubt. (People v. Archer (2000) 82 Cal.App.4th 1380, 1390.) “That analysis generally depends on whether the properly admitted evidence is so overwhelming as to the guilt of the nondeclarant that a reviewing court can say the constitutional error is harmless beyond a reasonable doubt.” (Ibid.)
E. Any Error Harmless
With respect to Landers’s Aranda/Bruton claim, his counsel believed there was no serious Aranda issue involved in allowing the recordings, and neither do we. The extrajudicial statement in the case at bar most closely resembles the situation presented in Richardson. The various statements on their face did not incriminate Landers in the crime and were incriminating only in light of Lander’s own phone conversations with police, his call to Pettigrew, and the video from the gas station.
In addition, here, as in Richardson, the trial court instructed the jury to limit consideration of Vigeant’s statement to Vigeant only. The court so instructed at the time the telephone conversations were played for the jury. As the high court noted, “with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination [for the jury members] to forget.” (Richardson, supra, 481 U.S. at p. 208.) Furthermore, to violate Aranda/Bruton, a statement must substantially inculpate or incriminate a codefendant. (See People v. Epps (1973) 34 Cal.App.3d 146, 158, overruled on other grounds in People v. Anderson, supra, 43 Cal.3d at p. 1123.) Here, the statements were clearly not “‘powerfully incriminating.’” (Richardson, supra, at p. 208; see also Bruton, supra, 391 U.S. at p. 135.) This bolsters the sufficiency of the jury admonishment with respect to the alleged Crawford error, since under Richardson there was no Aranda/Bruton error. (People v. Song, supra, 124 Cal.App.4th at p. 984 [finding a limiting instruction to be an inadequate substitute for the right to cross-examine a witness when there is also Aranda/Bruton error].)
With respect to Landers’s Crawford claim, we note that in that case the Supreme Court stated that testimonial statements include “‘ex parte in-court testimony’” and its functional equivalent, such as “‘... pretrial statements that declarants would reasonably expect to be used prosecutorially, ’” as well as “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Crawford, supra, 541 U.S. at pp. 51–52.) Vigeant’s statement to police was testimonial in that it consisted of statements that objectively were likely to be used in a later trial. However, the jury was instructed to consider the statements only against Vigeant and not against Landers. This limiting instruction was effective in restricting admission of the statement. Since Vigeant’s hearsay statement was not admitted against Landers, there was no hearsay that violated Landers’s confrontation rights under Crawford. The statement was moreover not significantly incriminating to Landers, as discussed ante.
Even if admission of Vigeant’s statement constituted a violation of Aranda/Bruton and Crawford, the errors were harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman). (Lilly v. Virginia (1999) 527 U.S. 116, 139–140 [applying reasonable doubt standard of Chapman to Sixth Amendment error]; People v. Anderson, supra, 43 Cal.3d at p. 1128 [applying Chapman standard to Aranda/Bruton error].) The Chapman test requires a finding beyond a reasonable doubt that the complained-of evidence did not contribute to the verdict, i.e., that it was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
Vigeant’s statement was merely cumulative of other overwhelming and uncontradicted evidence against him and Landers. (Harrington v. California (1969) 395 U.S. 250, 254 [Aranda/Bruton error is harmless where the properly admitted evidence against the defendant is overwhelming and the improperly admitted evidence is merely cumulative].) The threatening calls and the video from the night of the murder made it clear that both appellants knew Pettigrew and had some shady business with him that night. The cell phone towers tracked their progress all the way to Pettigrew’s apartment. Compared to this evidence, Vigeant’s statement was inconsequential. On its face, Vigeant’s statement did not constitute a finger pointed at Landers for any wrongdoing. Vigeant’s statements were merely incidental to additional overwhelming evidence against Landers.
Because we have concluded the evidence at issue was not incriminating to Landers under the Aranda/Bruton rule and was not admitted against Landers in violation of the confrontation clause, and was furthermore not prejudicial to Landers, Landers’s claim of ineffective assistance of counsel is rejected.
IV. Vigeant’s Motion to Discharge Retained Counsel
A. Vigeant’s Argument
Vigeant argues that the trial court erred in treating his request to discharge his retained attorney and acquire appointed counsel as a motion to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Vigeant contends that this was reversible error because he had a Sixth and Fourteenth Amendment right to relieve his privately retained attorney.
B. Relevant Authority
Criminal defendants have the right to dismiss a retained attorney. (People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) A defendant need not have cause or demonstrate that his attorney is incompetent. (People v. Munoz (2006) 138 Cal.App.4th 860, 863 (Munoz).) This rule also applies to posttrial proceedings. (Ibid.) The trial court, however, may deny a motion to relieve counsel if, within its discretion, relieving retained counsel would result in “‘significant prejudice’ to the defendant” or “‘disruption of the orderly processes of justice.’” (Ortiz, supra, at p. 983; see also People v. Lara (2001) 86 Cal.App.4th 139, 152.)
Munoz and People v. Hernandez (2006) 139 Cal.App.4th 101, 107–108 (Hernandez) clearly establish the proposition that the evaluation of a defendant’s request to discharge his or her retained counsel exclusively in terms of Marsden standards results in automatic reversal.
C. Proceedings Below
At the sentencing hearing, Vigeant’s defense counsel, David Cohn (Cohn), did not appear. Stephen Klarich (Klarich), an attorney for Cohn’s firm, was present to argue Cohn’s request for a continuance. The trial court stated, “I have also got a letter from Mr. Vigeant’s family indicating that they are going to make a motion for a new attorney. And I believe there is going to be a Marsden motion; is that correct?” Klarich replied, “Well, I don’t know about a Marsden motion for a privately-retained, but my client did want to make a statement regarding that, regarding our representation. I believe there is a conflict of interest.” The trial court stated, “If there is a request for new attorney, the only way that is going to happen is if the court finds there was substantial evidence to support removing Mr. Cohn from this case and allowing Mr. Vigeant either to get himself a private attorney or, if he shows that he is indigent, appointing an attorney on his behalf.”
The trial court recognized Rahel Kent who stated he had been retained for the sole purpose of attempting to obtain appointed counsel for Vigeant. The trial court reiterated that first it had to determine whether there was a conflict with Cohn to the degree that he could no longer represent Vigeant. Vigeant then had to show he was indigent. The only way to reach that point was for Vigeant to request a Marsden motion. Vigeant told the court he wanted to release his attorney due to ineffectiveness of counsel and a complete breakdown of communication. The trial court asked the prosecutor to step outside because it appeared Vigeant was raising a Marsden motion.
After the Marsden hearing, the trial court announced it would continue Vigeant’s sentencing, and there was a good chance he would have to release Cohn. When Cohn appeared at a later date, the trial court asked Vigeant if he was still having a problem with his attorney. Vigeant said he was, and the trial court cleared the courtroom for a second Marsden hearing. At the hearing Vigeant read numerous complaints about Cohn into the record. Cohn gave a lengthy response. Vigeant responded to Cohn, and Cohn gave further explanations for his actions. The trial court told Vigeant, “We don’t usually do this when it involves a private attorney, but I have done it in this instance because you have indicated you are indigent.” The trial court informed Vigeant that he had the burden to show his situation would be substantially impaired if Cohn were not relieved. Based on all it had heard, the court did not “see that there is a conflict. And I don’t see that I need to remove Mr. Cohn, and if I didn’t, it would substantially impair your representation.” (Italics added.) Vigeant proceeded to sentencing with Cohn.
The trial court appeared to believe it could relieve Cohn only if Vigeant showed that keeping Cohn would prejudice Vigeant rather than making the required finding that Vigeant would be significantly prejudiced if Cohn were relieved (or that the orderly processes of justice would be disrupted if Cohn were relieved). (See Ortiz, supra, 51 Cal.3d at p. 983.)
D. Marsden Inquiry Erroneous
The issue in Munoz was whether the rule of Ortiz (that a defendant can have his retained counsel relieved without cause) applied after the defendant had been convicted. (Munoz, supra, 138 Cal.App.4th at p. 863.) As in the instant case, when the trial court addressed Munoz’s request to relieve his counsel, it stated that substitution of counsel required a conflict of interest or incompetent representation. (Id. at p. 864) It denied the request on the ground that the defendant had failed to make an adequate showing that retained counsel was incompetent. (Id. at p. 865.)
The Munoz court concluded Ortiz did apply postconviction, since assistance of counsel is considered essential at every critical stage of the criminal process, including postconviction proceedings such as motions for new trial, sentencing, and pronouncement of judgment. (Munoz, supra, 138 Cal.App.4th at p. 867.) Munoz reiterated that “‘[a] court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.’ [Citation.]” (Id. at p. 870.) Blanket generalizations about possible delay are not sufficient. (Ibid.) In Munoz, although the trial court might have been correct had it found that substantial delay in the administration of justice would result from granting the defendant’s request, the record did not contain anything to suggest that the trial court made such an inquiry. (Id. at pp. 869–870.) The Munoz court noted that the trial court itself had delayed the proceedings for five weeks after denying the substitution request. (Id. at p. 870.) Accordingly, Munoz reversed and remanded to allow the defendant to discharge retained counsel. The Munoz court observed that its decision did not require an automatic retrial, and the case would proceed anew from the point at which the defendant originally sought to discharge his lawyer. (Id. at p. 871.)
The request for substitute counsel in Hernandez was made just four days before trial. (Hernandez, supra, 139 Cal.App.4th at p. 105.) Again, the court evaluated the request as if it were a Marsden motion (“the trial court here held what was in essence a Marsden hearing”), and required the defendant to show that his counsel was providing inadequate representation. (Hernandez, supra, at pp. 105–106, 108.) As in Munoz, the Hernandez court stated that the trial court might have been correct had it found that a disruption to the judicial process would result. It made no such inquiry, however, and it did not mention this factor in its decision, which was based entirely on a Marsden analysis. (Hernandez, supra, at p. 109.) The Hernandez court expressly rejected the idea that, by virtue of the belatedness of the discharge request, there was some sort of implied recognition that a disruption of justice would result from granting it. (Id. at p. 109.) The denial of the request required automatic reversal. (Ibid.) Significantly, the defendant in Hernandez, like Vigeant, sought to relieve his retained counsel and seek representation by the public defender or other appointed counsel. (Id. at p. 105.) The Hernandez court concluded that a Marsden analysis “does not suffice in a case such as this, when the defendant is represented by retained counsel and is or may be eligible to have appointed counsel.” (Hernandez, supra, at p. 109.)
In the instant case, it was improper for the trial court to hold Marsden hearings. The trial court should not have declined Vigeant’s request to relieve Cohn without making a finding that granting the request would result in significant prejudice to the defendant or a disruption in the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at p. 983.) The published record and the record of the two Marsden hearings show that no such inquiry was made. Moreover, the sentencing was continued in any event. The trial court erred in not making the proper inquiry and finding, and the proper remedy is to set aside the judgment, but not the conviction. (Munoz, supra, 138 Cal.App.4th at p. 871.) “Once new counsel is appointed, the case shall proceed anew from the point [the] defendant originally sought to discharge his attorney.” (Ibid.)
DISPOSITION
The judgment is affirmed in Landers’s case. The trial court’s decision denying Vigeant’s motion to relieve his retained attorney is reversed, and the matter is remanded to allow Vigeant to discharge his retained attorney. Although this requires a reversal of the judgment in Vigeant’s case, his convictions are not reversed, and a retrial is not required. When new counsel is retained or appointed, Vigeant’s case shall proceed from the point at which he originally sought to discharge his attorney.
We concur: ASHMANN-GERST, J., CHAVEZ, J.