Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F00144
BUTZ, J.On a December night just before Christmas, Matthew Seivert was lured to Tahoe Park in Sacramento by his ex-girlfriend, Nicole Carroll. As the couple talked on a park bench, a group of 12 youths in three separate cars waited stealthily to attack him. When Seivert got into his car and attempted to leave, the youths blocked his exit and one of them shot him to death.
Carroll and four members of the group were charged with murder. Six other youths, who were granted immunity, testified at the trial, during which the jury heard evidence of a conspiracy to “jumpâ€� Seivert because he had made racial slurs about Asians. The jury found all five defendants guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true the special circumstance that the shooter, defendant Hung Thieu Ly, committed the murder while lying in wait (§ 190.2, subd. (a)(15)) (hereafter section 190.2(a)(15)).
Undesignated statutory references are to the Penal Code.
Ly and his four convicted accomplices--Nicole Carroll, Jimmy Chi Cooc, John Dich and Chan Venh (“John�) Lam--appeal. Their arguments include erroneous jury instructions, error in admission and exclusion of evidence, prosecutorial misconduct, and the sufficiency of the evidence to support the verdict. We find no prejudicial error. With the exception of a minor sentencing correction as to defendant Ly, we shall affirm all five judgments.
FACTUAL BACKGROUND
The shooting
On December 23, 2003, 19-year-old Matthew Seivert was living with his mother, Stepheny Milo, at her home in East Sacramento. Seivert and Carroll had been high school sweethearts, but they broke up when Carroll moved to Los Angeles in 2001. Around 8:00 p.m., Carroll called for Seivert, but he was not home. Seivert received a second call shortly before midnight, after which he asked his mother if he could borrow her Toyota Camry so he could “see Nicole.� Although Milo initially refused, she finally relented and let her son borrow the car.
Around 1:45 a.m., Sacramento City Police Officer Barry Lee went to Tahoe Park in response to a report of shots fired. Lee drove around the park, but saw nothing. At 2:20 a.m., Lee returned to a location on Eighth Avenue, very close to the park, and discovered the Camry, which had crashed up against a chain link fence. Seivert, unconscious and incoherent, was transported by ambulance from the Camry to the hospital.
Seivert suffered two gunshot wounds, one to the left side of the head and another to the right chest. He also suffered lacerations and abrasions, consistent with having been struck by flying glass. Seivert died from his wounds.
Three bullet jackets from a .38-caliber Charter Arms revolver were recovered from the Camry. There was possible bullet damage to the front driver’s-side window, the rear driver’s-side window and the rear window. A detective who inspected the Camry opined that gunshots had pierced each of the three windows.
The plot
Six immunized witnesses--Quoc Lam, Sieu Nguyen, Johnson Phan, Dac Su, Davis To and Damon Voong--testified about a meeting that took place at Voong’s house on the evening of December 23, during which the plan was hatched to attack Seivert at Tahoe Park. Sometimes their versions coincided; often their testimony conflicted not only with each other, but with the same witness’s prior statements. In accordance with settled principles (People v. Sotomayor (1996) 47 Cal.App.4th 382, 386; Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573-574]), we recite the evidence in the light most favorable to the judgments.
To avoid confusion with defendant John Lam, we hereinafter refer to John Lam as “Lam� and his cousin, Quoc Lam, as “Quoc.�
John Lam, who was then dating Nicole Carroll, was angry with Seivert for making disparaging remarks about Asians in phone calls to Carroll, saying things like “fuck Asians� and referring to them as “Chinks.� Lam devised a plan whereby Carroll would phone Seivert and ask him to meet her at Tahoe Park; Lam and his friends would drive to the park, wait for Seivert and then “jump� him or beat him up.
Lam called his cousin Quoc and told him about the plan to lure Seivert to the park and jump him. Quoc went to his house and got his nunchakus. He also had golf clubs in his trunk, which he thought could be used. Lam called his cousin Davis To and told him he wanted to “kick this white kid’s ass� for making racial slurs. Lam’s friends and relatives contacted others, until 11 young men arrived at Voong’s house, where they met with Carroll and Lam. At the meeting were the five defendants-- Carroll, Cooc, Dich, Lam and Ly--as well as the witnesses who testified under a grant of immunity.
At Voong’s house, Lam brought up the subject of beating up the “white boy� to “teach him a lesson� about using racial slurs. Carroll said she wanted Seivert beaten up because she did not like him. Lam explained that Seivert would meet Carroll at Tahoe Park, that the group should wait for him to get out of his car and then jump him. Quoc intended to approach Seivert from behind, hit him a couple of times and smash his car with the nunchakus. Su intended to jump out of Quoc’s car and beat Seivert up. There was some discussion at the house about Cooc and Ly having guns. However, killing or shooting Seivert was not explicitly discussed.
During the meeting at Voong’s house, Carroll called Seivert. Later, after speaking on her cell phone, she told the group that Seivert had called and they should go to Tahoe Park. Lam told everyone “let’s go� and instructed them to leave for the park. He told Quoc to meet him on the other side of the park and to block the Camry.
The group traveled to Tahoe Park in three separate vehicles. The table below shows the vehicles that were driven and their respective drivers and occupants.
The table is derived from Ly’s opening brief. No one disputes its accuracy.
Acura RSX
Honda Pilot
Honda Accord
John Lam (driver)*
John Dich (driver)*
Quoc Lam (driver)
Nicole Carroll*
Jimmy Chi Cooc*
Dac Su
Hung Thieu Ly*
Davis To
Sieu Nguyen
Johnny Truong
Johnson Phan
Damon Voong
Tommy Vu
*Defendants’ names appear in boldface type.
As they drove to the park, Cooc and Dich had a conversation about a gun. Dich wanted to see Cooc’s nine-millimeter gun, and it was passed around the Honda Pilot. Ly’s .38-caliber revolver was also passed around. Ly tied a blue or black rag around his face that covered his nose and mouth.
The three cars split up when they got to the park. They waited about 15 minutes for Seivert to arrive. Carroll alerted them by phone that Seivert was on his way.
Seivert arrived at the park, got out of his Camry and approached Carroll, who was seated on a bench. The couple talked for a few minutes. Seivert reached for Carroll, but she pulled away. Seivert then returned to the Camry. Lam and Dich each said, “Let’s go get him,� or words to that effect. Because Seivert had backed into the parking space, someone in the Pilot said, “Block him out.� Dich then drove the Pilot toward the driver’s side of the Camry, parking at an angle. The Camry moved forward a little, but Lam’s Acura RSX also pulled in front of the Camry, causing it to stop. The Camry was blocked in and had no room to leave. Quoc retrieved the nunchakus and Dac Su took out a golf club.
Ly got out of the Pilot and pulled a gun from his waistband. Cooc also got out of the car with his gun drawn. Vu threw a Heineken bottle, which hit the Camry. Ly stood in front of the Camry and pointed his gun at the front windshield saying, “Don’t move� or “stop, stop, stop.� Some witnesses thought Seivert revved the engine and the Camry may have moved forward a little.
Ly fired at least three shots at the Camry. The first shot was fired at the front windshield, the second shot from the driver’s side door, and the third from behind the Camry by the trunk. The group then returned to their vehicles and drove back to Voong’s house. On the way back, Ly exclaimed, “I got him in the head,� or “I got him, I got him. He almost ran me over.� Ly also said, “I did what I had to do,� and “if he hadn’t of moved I wouldn’t have shot him. He almost ran me over.�
Back at the house, Carroll smiled and said something to the effect of “Oh, well, I didn’t like him anyways.� About a week later, Lam called To and said he had spoken with a homicide detective and that he (To) should keep his story straight.
On January 10, 2004 (all further calendar references are to that year), about three weeks after the shooting, police recovered a loaded nine-millimeter semiautomatic firearm from Cooc’s residence. Two days later, police recovered the .38-caliber revolver used to kill Seivert from Dich’s residence.
Police recovered a box of .38-caliber live ammunition from Ly’s home. The cartridges were loaded with soft-point, brass-jacketed Winchester .38 Special bullets--similar in all respects to the bullets fired into the Camry. They also found two bandanas, one dark navy blue and the other black.
Mobile phone records showed that defendants and the other participants placed numerous calls on their cell phones to one another throughout the late night and early morning hours of December 23 and 24, 2003. Carroll’s cell phone records showed that she called Seivert’s residence at 7:22 p.m. and 11:47 p.m. In addition, she called Seivert’s cell phone at 12:39 a.m., 12:47 a.m. and 12:55 a.m. (minutes before the shooting), each time using “*67,� which is a means of blocking the calling number from display on the receiver’s phone.
Defense case
None of defendants testified. Defense counsel focused their defense on four central themes: (1) the prosecution witnesses who testified about the plot and shooting were unreliable and self-contradictory; (2) no one who participated in the plot to “jump� Seivert said anything about shooting him; (3) Ly’s decision to shoot Seivert was the unanticipated act of a maverick, and thus the crime of murder was not the natural and probable consequence of the agreement to beat up the victim; and (4) under the doctrine of imperfect self-defense, Ly’s shooting of Seivert was not murder because Ly harbored a good faith but unreasonable belief that Seivert was trying to run him over with the Camry.
The jury found Ly guilty of first degree murder with personal use of a firearm (§ 12022.53, subd. (d)); the jury also found true as a special circumstance that he intentionally killed the victim by lying in wait. Defendants Carroll, Cooc, Dich and Lam were found guilty of first degree murder, with a special finding that they were armed within the meaning of section 12022, subdivision (a)(1).
Other facts will be set forth as they become relevant.
DISCUSSION
I. CALJIC No. 8.51--Ireland Error
People v. Ireland (1969) 70 Cal.2d 522 (Ireland).
During an in-chambers discussion, Carroll’s attorney asked that the jury be instructed on second degree felony murder. (CALJIC No. 8.32.) The prosecutor was opposed, pointing out that there would be no predicate crime to which such an instruction could attach, and the trial court agreed. In conformance with this ruling, the court deleted all references to felony murder in CALJIC Nos. 8.10 and 8.50. The clerk’s transcript reflects that the court refused defense requests for CALJIC Nos. 8.32 (second degree felony murder) and 8.34 (second degree felony murder--aider and abettor liability). Nevertheless, at the request of defendants Carroll, Cooc and Ly, the trial court did give CALJIC No. 8.51. As read to the jury, the instruction stated:
“If a person causes another’s death, while committing a felony which is dangerous to human life, the crime is murder. If a person causes another’s death, while committing a misdemeanor which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter. [¶] There are many acts which are lawful but nevertheless endanger human life. If a person causes another’s death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involved, he is guilty of involuntary manslaughter. [¶] If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder.â€� (CALJIC No. 8.51, italics added.)
Although the jury was never told which crime could qualify as a “dangerous-to-human-life� felony within the meaning of the above instruction, they were given CALJIC No. 9.02, which sets out the elements of assault by means likely to produce great bodily injury (hereafter also felonious assault).
All five defendants now claim that the giving of a felony-murder charge to the jury constituted prejudicial error because, under the “merger� doctrine, felonious assault may not be used as a predicate felony for applying the felony-murder rule. (Ireland, supra, 70 Cal.2d at p. 538.)
We initially conclude that Carroll, Cooc and Ly are estopped from raising this claim. CALJIC No. 8.51 was explicitly requested by all three defendants. When defense counsel makes a deliberate, tactical choice to request a particular instruction, the rule of invited error applies, and the defendant cannot challenge it on appeal. (People v. Wader (1993) 5 Cal.4th 610, 657-658.) Here, defendants had a tactical purpose in requesting a felony-murder instruction. A reflexive adoption of the felony-murder rule using the predicate crime of felonious assault would have produced a verdict of second degree murder. (Ireland, supra, 70 Cal.2d at p. 538.) A felony-murder instruction thus gave the jurors the option of shortcutting to a verdict of second degree murder without undertaking the more probing inquiry of whether defendants should be found guilty of first degree murder based on premeditation and/or lying in wait. Because there was a plausible tactical reason for requesting CALJIC No. 8.51 (i.e., avoiding a first degree murder verdict), Carroll, Cooc and Ly are precluded from challenging it on appeal. (People v. Hardy (1992) 2 Cal.4th 86, 152.) However, we must still decide whether the instruction was prejudicial as to Dich and Lam.
In Ireland, supra, 70 Cal.2d 522, the California Supreme Court adopted the “merger� rule in a case involving the underlying felony of assault with a deadly weapon, where the defendant had shot and killed his wife. The jury was instructed that the defendant could be convicted of second degree murder based on the felony-murder rule “‘when the killing is a direct causal result of the perpetration or attempt to perpetrate a felony inherently dangerous to human life, such as an assault with a deadly weapon.’� (Id. at p. 538, italics added.)
The state Supreme Court reversed, reasoning that “[t]o allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault--a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.� (Ireland, supra, 70 Cal.2d at p. 539.) The court therefore concluded that the offense of assault with a deadly weapon, which was “an integral part of� and “included in fact� within the homicide, could not support a second degree felony-murder instruction. (Ibid.)
As the People concede and the trial court recognized at the hearing on the motion for new trial, it was Ireland error to include the first sentence of CALJIC No. 8.51 in the instruction. However, we also agree with the trial court that the error was harmless beyond a reasonable doubt.
When a jury is instructed on an irrelevant theory that may inject confusion into its deliberations, we ask whether “there is ‘a reasonable likelihood’ the jury understood the instructions as the defendant asserts.� (People v. Cain (1995) 10 Cal.4th 1, 36, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].) In making this determination, “[i]t is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.� (Estelle v. McGuire, supra,502 U.S. at p. 72 [116 L.Ed.2d at p. 399]; see also People v. Mincey (1992) 2 Cal.4th 408, 451.)
This case is analogous to People v. Barnett (1998) 17 Cal.4th 1044. There, the trial court instructed, in pertinent part: “‘The crime of murder is the unlawful killing of a human being with malice aforethought or unlawful killing of a human being which occurs during the commission or attempted commission of a felony inherently dangerous to human life. [¶] In order to prove the commission of the crime of murder, each of the following elements must be proved. . . . [T]he killing was done with malice aforethought.’â€� (Id. at p. 1154.) Barnett argued that this instruction was prejudicial because it allowed the jury to convict him of murder based on the commission of felonies that were impermissible under the merger doctrine, such as assault or assault with a deadly weapon. (Ibid.) The California Supreme Court found no reversible error because the other instructions given clearly informed the jurors that there could be no conviction of first degree murder unless they found deliberation and premeditation. (Ibid.) Moreover, the record was clear that the prosecutor was arguing for conviction on the theory of deliberate and premeditated murder, not felony murder. (Id. at pp. 1154-1155.) Accordingly, the court concluded, “no reasonable juror could possibly have understood that guilt could be predicated upon a felony-murder theory.â€� (Id. at p. 1155.)
A similar result is mandated here. Unlike Ireland or the situation in defendants’ favorite case, Suniga v. Bunnell (1993) 998 F.2d 664, 666 , there was no instruction telling the jury which felony could qualify for felony-murder liability. The verdict form did not ask the jury to identify a felony underlying a finding of murder and the trial court expressly refused to give any other instructions on the felony-murder rule. Under these circumstances, giving the first sentence of CALJIC No. 8.51 was akin to giving the jury a rod and a line, but no hook, lure or bait, and expecting it would catch a fish. The first sentence of CALJIC No. 8.51 was nothing but an orphaned charge that found no support in the other instructions with which the jury had to grapple.
Defendants hypothesize that the instruction was prejudicial because it could have induced the jury to assume the existence of malice without making the necessary findings on the elements thereof. However, nothing in CALJIC No. 8.51 told the jury it did not have to find malice before finding defendants guilty of murder. On the contrary, the instructions clearly required the jury to find malice in order to convict defendants of murder. The jury was also instructed that the malice element would be negated if the killing was done in the heat of passion or under an unreasonable belief in the need for self-defense. These instructions are inherently inconsistent with the concept that a killing by means of felonious assault is automatically murder; and it would be unreasonable to conclude that the jury simply tossed them aside in favor of an incomplete felony-murder charge that did not identify a predicate felony for its application. (See People v. Coddington (2000) 23 Cal.4th 529, 594 [courts presume that jurors approach the instructions with intelligence and common sense], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We find it unlikely the jury viewed the first sentence of CALJIC No. 8.51 as anything other than an irrelevant instruction that had no applicability to the case.
Using the language of CALJIC No. 8.10, the trial court told the jury: “Defendants are accused of having committed the crime of murder . . . . [¶] . . . In order to prove this crime each of the following elements must be proved: [¶] . . . [¶] [T]he killing was done with malice aforethought.â€� (Italics added.) Using the language of CALJIC No. 8.11, the court then set out the legal requirements for a finding of malice.
Lastly, neither the prosecutor nor defense counsel suggested to the jury that it could return a murder verdict based on the fact Seivert was killed during the commission of a felonious assault. Instead, the prosecutor urged the jury to return a verdict of first degree murder by lying in wait which, according to the instructions, required findings of (1) intent to inflict bodily harm involving a high degree of probability that it will result in death; (2) wanton disregard for human life; and (3) “a state of mind equivalent to premeditation or deliberation.� The jury’s verdict of first degree murder against accomplices Carroll, Cooc, Dich and Lam, coupled with its special-circumstance finding that Ly murdered by lying in wait, renders it virtually certain that the jury did not arrive at a murder verdict by using the felony-murder rule.
We conclude beyond a reasonable doubt that any Ireland error was harmless.
II. Exclusion of Ly’s Statements to the Police
Pursuant to Evidence Code sections 1250 and 1252, Carroll, Cooc, Dich and Lam moved to introduce Ly’s statements to police, in which Ly claimed that he shot Seivert because he feared that the victim was about to run him over. The statements were made on January 10, almost three weeks after the killing of Seivert. After initially denying any connection with the murder, Ly admitted that he fired three shots at the Camry, adding that he did so because he thought Seivert was going to run him over.
The trial court refused to admit the evidence, finding that, under the totality of the circumstances, the statements were not trustworthy because they were made (1) in a coercive atmosphere of police interrogation; (2) while Ly knew he was under suspicion for murder; and (3) at a time when Ly “had every reason to come up with an explanation for his actions.� Defendants claim the evidentiary ruling constituted an abuse of discretion.
Evidence Code section 1250, subdivision (a) provides: “Subject to [Evidence Code] Section 1252 , evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.â€� (Italics added.) Section 1252 provides: “Evidence of a statement is inadmissible . . . if the statement was made under circumstances such as to indicate its lack of trustworthiness.â€�
“‘The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion.’ [Citation.] A reviewing court may overturn the trial court’s finding regarding trustworthiness only if there is an abuse of discretion.� (People v. Edwards (1991) 54 Cal.3d 787, 819-820 (Edwards).)
“To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ‘“made at a time when there was no motive to deceive.�’� (Edwards, supra, 54 Cal.3d at p. 820.)
We can conceive of few examples of an untrustworthy statement more worthy of exclusion under Evidence Code section 1252 than one made by a defendant who, during a police interrogation, after having initially denied any involvement in the crime, makes a statement admitting guilt but seeking to minimize or eliminate his culpability. As in Edwards, where the defense sought to introduce a taped statement by the defendant shortly after his arrest, Ly “had a compelling motive to deceive and seek to exonerate himself from, or at least to minimize his responsibility for, the shooting[].� (Edwards, supra, 54 Cal.3d at p. 820.) The trial court did not abuse its discretion.
Even if the trial court erroneously excluded Ly’s statements, we see no prejudice from the ruling. The jury heard testimony from several different sources that Ly told his companions after the shooting he “did what [he] had to do� and that he shot Seivert because he feared Seivert was going to run him over with the Camry. Indeed, defense counsel used these statements as a cornerstone of their argument against a murder verdict. Ly’s unsurprising repetition of the same exculpatory statements almost three weeks after the shooting was cumulative of other testimony and would not have significantly altered the jury’s evaluation of the events that night. Under any standard, the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [applying harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) to erroneous exclusion of evidence].)
III. Refusal to Give Proposed Defense Instruction
During a discussion of jury instructions, Lam’s attorney requested that the trial court supplement CALJIC No. 3.00 with the language italicized below: “Each principal, regardless of the extent or manner of participation, is equally guilty, except that an aider and abettor may be found guilty of a lesser offense than the perpetrator.� (Italics added.) The trial court refused to give the augmentation, ruling that it did not belong in the standard instruction.
Carroll, Cooc and Dich now claim the court committed prejudicial error in failing to accede to Lam’s proposal, even though none of them joined in it at trial. They urge that the added language was a correct statement of law according to People v. Woods (1992) 8 Cal.App.4th 1570, 1589-1590 (Woods), and necessary to a full understanding of principal and accomplice liability.
Defendants are precluded from raising this argument because they did not propose added language at trial. A defendant’s failure to request clarification or amplification of jury instructions that correctly state the law forfeits the claim of error on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622 (Hart); People v. Bolin (1998) 18 Cal.4th 297, 329 (Bolin).)
In any event, Woods does not support defendants’ assertion that the trial court was obligated to give the augmentation. In Woods, the jury sent a note to the court asking if an accomplice could be found guilty of murder in the second degree if the actual perpetrator were determined to be guilty of first degree murder. (Woods, supra,8 Cal.App.4th at p. 1579.) The trial court incorrectly answered the question, “No,� and the appellate court reversed. (Id. at pp. 1579, 1590.) Woods never held or suggested that the jury should, as a routine matter, be advised of the viability of a lesser verdict as to an accomplice.
Here, the trial court specifically instructed the jurors that they must decide each defendant’s guilt separately. The jurors were also told that if they were not satisfied beyond a reasonable doubt that any defendant was guilty of the crime charged, they could find him or her guilty of any lesser crime shown by the evidence. In closing argument, the prosecutor reminded the jurors: “We have five defendants. You have to look at each individually and make a determination about each one individually.�
Generally, “‘a trial court may refuse a proffered instruction if it . . . is duplicative.’� (People v. Brown (2003) 31 Cal.4th 518, 559.) A trial court does not err by refusing to give specially requested instructions that are redundant (People v. Cash (2002) 28 Cal.4th 703, 736; People v. Turner (1994) 8 Cal.4th 137, 203) or adequately covered by other instructions (People v. Noguera (1992) 4 Cal.4th 599, 648). Since the concept embodied in defendants’ proposed modification of CALJIC No. 3.00 was conveyed by other instructions and each defendant had the opportunity to argue the principle to the jury, the court’s refusal to give the proposed addition to CALJIC No. 3.00 was not error, or was certainly harmless. (See People v. Hughes (2002) 27 Cal.4th 287, 361-363.)
IV. Failure to Give Specific Natural and Probable Consequence Instruction
Without objection and in the language of CALJIC No. 3.02, the trial court instructed the jurors that defendants could be found guilty of murder by aiding and abetting an assault if they found that murder was a natural and probable consequence thereof.
The court instructed, in pertinent part: “One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes but is also guilty of any other crimes committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the crime of murder as charged in Count One based upon aiding and abetting, you must be satisfied beyond a reasonable doubt that: [¶] One, the crime of assault and/or assault by means of force likely to cause great bodily injury was committed. [¶] Two, the defendant aided and abetted one or both of these crimes. [¶] Three, a co-principal in those crimes committed the crime of murder. [¶] And four, the crime of murder was a natural and probable consequence of the crime of assault.â€�
Carroll, Cooc and Dich argue these instructions were deficient because the court did not specifically tell the jurors that in order to convict defendants of first degree murder, they had to find beyond a reasonable doubt that first degree murder was a natural and probable consequence of the crime of assault or felonious assault.
As noted previously, the argument is forfeited by defendants’ failure to request clarification of the standard instruction in the trial court. (See People v. Daya (1994) 29 Cal.App.4th 697, 714 [“defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s failure to expand, modify, and refine standardized jury instructions�].)
Even if the point had been properly preserved for appeal, we would find it meritless, because the proposed instruction would not have made any difference. The jury made a special finding that the shooter, Ly, committed murder by lying in wait. The evidence conclusively showed that all defendants were lying in wait to commit the assault. Since all murder committed by lying in wait is first degree (§ 189), the only murder of which his accomplices could have been found guilty was that of the first degree. Stated differently, once the jury found that murder was a natural and probable consequence of the target crime of assault, the only conceivable verdict as to the other defendants that is consistent with the evidence and special circumstance finding was first degree murder. Failure to give the instruction was harmless beyond a reasonable doubt.
V. Instruction Regarding Phan’s Status As an Accomplice
The trial court ruled that trial witnesses Quoc, Nguyen, Su, To and Voong were accomplices as a matter of law. However, it left it up to the jury to determine whether witness Johnson Phan was an accomplice. The jury was also given standard instructions that a defendant could not be convicted solely on the uncorroborated testimony of an accomplice (§ 1111), and that an accomplice’s testimony should be viewed with caution.
Carroll and Ly, joined by Cooc and Dich, contend that the trial court erred in refusing their request to instruct the jury that Phan was an accomplice as a matter of law. We disagree.
Section 1111 defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.â€� In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. (People v. Hoover (1974) 12 Cal.3d 875, 879.) That section defines principals to include “[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .â€� (§ 31.)
A witness’s status as an accomplice “is a question for the jury if there is a genuine evidentiary dispute [on knowledge and intent] and if ‘the jury could reasonably [find] from the evidence’ that the witness is an accomplice.� (People v. Howard (1992) 1 Cal.4th 1132, 1174, citing Hoover, supra, 12 Cal.3d at p. 880.) “‘“Where such witness is an accomplice as a matter of law, the court should so charge. . . . Conversely, where, as a matter of law, the witness is not an accomplice, the court does not err in refusing to charge that he is or in refusing to submit the issue to the jury.�’� (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, fn. omitted.)
The trial court properly submitted the question of Phan’s accomplice status to the jury, because there was conflicting evidence on the issue. Phan testified that he was watching television with several friends at Ly’s house when he heard them discussing a plan to beat up Seivert. Although Lam said they were going to beat up Seivert for calling them names, Phan did not have a problem with Seivert; in fact, they used to “goof off� with each other at school. Phan was not offended by Seivert’s name-calling and did not want to harm Seivert, whom he considered a friend. When he accompanied Lam and the others to the scene, Phan was in his pajamas and slippers. He went to the park “just to watch.� He sat silently in the car through the entire incident. Phan denied that he had any intention to attack Seivert or that he uttered any words of encouragement to his friends.
Carroll and Ly acknowledge that Phan may not have been an accomplice by virtue of encouragement or assistance, but insist the evidence showed conclusively he was a co-conspirator, based upon two selective excerpts from his testimony: First, when asked who agreed to beat up Seivert, Phan said, “Basically everybody.� Second, Phan testified, “He [Lam] just said [he] want[ed] to jump this white dude named Matt. I was like, sure, why not.�
These two statements do not establish Phan was a co-conspirator as a matter of law. “‘Conspiracy is a “specific intent� crime. . . . The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.’� (People v. Swain (1996) 12 Cal.4th 593, 600.)
Phan’s statement that “basically everybody� agreed to beat up Seivert was equivocal and did not necessarily mean that he endorsed the plan, especially in light of his numerous other statements denying any intent to harm Seivert or participate in the beating. Likewise, Phan’s statement, “sure, why not,� in response to Lam’s statement that he (Lam) wanted to “jump� the “white dude,� does not compel the inference that Phan conspired to assault Seivert. In a room full of youths discussing a group beating, such a response could well be construed as equivalent to a shrug of the shoulders--not an expression of shared specific intent to commit a crime.
Although a reasonable trier of fact could draw contrary inferences, there was substantial evidence that Phan did not intend to assault Seivert and his participation was limited to mere presence at the scene. Accordingly, the trial court did not err in submitting the question of his accomplice status for determination by the jury. (See People v. Stankewitz (1990) 51 Cal.3d 72, 91-92; People v. Garrison (1989) 47 Cal.3d 746, 772.)
VI. Failure to Include Bracketed Language in CALJIC No. 3.10
CALJIC No. 3.10 which is captioned “ACCOMPLICE--DEFINED� states: “An accomplice is a person who [is] [was] subject to prosecution for the identical offense charged [in Count[s] ____] against the defendant on trial by reason of [aiding and abetting] [or] [being a member of a criminal conspiracy].� (Boldface added.) In chambers, the trial court proposed giving the instruction without the boldface, bracketed language. No defendant raised an objection or requested that the bracketed language referencing conspiracy be included.
The instruction, as proposed by the trial court (and eventually given to the jury), stated: “An accomplice is a person who is subject to prosecution for the identical offense charged by reason of aiding and abetting.�
Carroll, Cooc, Ly and Dich contend the trial court committed federal constitutional error in neglecting to add the bracketed language. Carroll argues that, had the language been included, the jury may well have believed that Phan was an accomplice by virtue of entering into a conspiracy to assault Seivert, even if it did not believe he aided or abetted the attack.
Defendants are precluded from advancing this argument because they did not request inclusion of the bracketed language in the trial court. A defendant’s failure to request augmentation of standard jury instructions that correctly state the law forfeits the claim of error on appeal. (Hart, supra, 20 Cal.4th at pp. 621-623; Bolin, supra, 18 Cal.4th at p. 329; People v. Dennis (1998) 17 Cal.4th 468, 514.)
In any event, the failure to include the bracketed language could not have prejudiced defendants because, as the People point out, if the jury believed Phan joined in the conspiracy at Voong’s house, they almost certainly would have found that his conduct in accompanying the attackers to the crime scene aided, or at least encouraged, his confederates. Under the facts of this case, it was highly improbable a jury would conclude that Phan conspired to commit but not to aid or abet the charged offense.
VII. Substantial Evidence to Support Murder Verdict Against Dich
Dich alleges that the judgment convicting him of murder should be reversed for insufficiency of the evidence. While conceding the jury was free to conclude that Dich agreed to a plot to lure Seivert to the park and “jump� him, he insists that “[n]o rational jury could have found . . . Dich [guilty] of the crime of murder, because the shooting of Matthew Seivert was not the natural or probable consequence of the assault Dich agreed to participate in.�
“[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.� (People v. Beeman (1984) 35 Cal.3d 547, 561.)
An aider and abettor is guilty not only of the offense he intended to facilitate or encourage, but also of any other crime that was a “natural and probable consequence� of the crime aided and abetted. The natural and probable consequence doctrine is based on the conclusion that aiders and abettors should be responsible for the harm they have foreseeably put in motion. (People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman).)
In applying the natural and probable consequence doctrine, the jury must decide whether the defendant aided and abetted the commission of the target crime and if the defendant’s confederate committed an offense other than the target crime, and whether “the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.� (Prettyman, supra, 14 Cal.4th at p. 267.)
“‘[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.’� (Prettyman, supra, 14 Cal.4th at p. 261.) “The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident.� (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
The evidence firmly supports the jury’s finding that the murder was a natural and probable consequence of the group attack planned at Voong’s house, in which Dich actively participated. Phan testified that Dich drove the Honda Pilot on the night of the murder. After getting a cell phone call, they picked up Ly, the ultimate gunman, on the way to Voong’s house. Voong testified that Dich was present when the plan was hatched to launch the surprise attack on Seivert. Dich was also present outside Voong’s house when Ly said he was bringing a gun along “in case something happens.� Phan and Voong were passengers in the Pilot when Dich drove to Tahoe Park. Cooc’s gun was being passed around in the car. Dich wanted to see the gun and it was passed to him. He sat in the Pilot and waited for Seivert to arrive. When Seivert tried to drive away in the Camry, Dich drove the Pilot so as to block the Camry’s escape route. He urged his confederates to “get out and get ‘um.’� Finally, after the shooting of Seivert, the murder weapon was recovered by police at Dich’s house, where it had been stashed in a closet.
The jury thus heard evidence that Dich (1) was intimately involved in the plan to attack Seivert; (2) drove one of the vehicles used to surround the victim; (3) knew that two of his collaborators were carrying guns; and (4) actively assisted in the surprise attack. Accordingly, we reject as spurious the claim that there was no substantial evidence to support a finding that he was an accomplice to murder.
VIII. Lying-in-wait Special Circumstance Instruction (Ly)
The trial court gave a standard lying-in-wait special circumstance instruction, as set forth in CALJIC No. 8.81.15.1. As given to the jury, the instruction stated in relevant part: “To find that the special circumstance referred to in these instructions as murder by means of lying in wait is true, each of the following facts must be proved: [¶] The defendant, Hung Ly intentionally killed the victim; [¶] And, two, the murder was committed by means of lying in wait. Murder which is immediately preceded by lying in wait is murder committed by means of lying in wait. [¶] The term ‘lying in wait’ is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise even though the victim is aware of the murderer’s presence. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.â€� (Italics added.)
Ly complains on appeal that the CALJIC No. 8.81.15.1 instruction was not sufficient because it did not include an additional element that was subsequently adopted in CALCRIM No. 728, to wit: “He or she intended to kill the person by taking the person by surprise.� According to Ly, “[t]he problem is that the jury was not instructed as to defendant’s intent in lying in wait. If he lay in wait only with the intent of surprising Seivert so that he could assault him, rather than the intent of surprising him so that he could kill him, the crime was first degree murder but the special circumstance was not satisfied. The jury had no way of divining that distinction from the instruction as given.�
At the outset, we conclude Ly has forfeited the point by failing to propose an instruction pinpointing the alleged distinction. (People v. Laws (1993) 12 Cal.App.4th 786, 796.) In any event, the argument lacks merit.
There is no requirement in section 190.2(a)(15) that the murderer intend to effectuate a killing “by surprise.â€� Instead, the section creates special punishment if the murder is accomplished “by means of lying in wait.â€� (§ 190.2(a)(15), italics added.)
“The lying-in-wait special circumstance requires proof of ‘an intentional murder, committed under circumstances [the elements of which] include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.’� (People v. Jurado (2006) 38 Cal.4th 72, 119, italics added.) Thus, while section 190.2(a)(15) requires that a defendant intend to kill the victim and launch his attack “by surprise,� there is no requirement that he also intend to “kill by surprise.�
The sole distinction between lying-in-wait first degree murder (§ 189) and lying-in-wait special-circumstance murder (§ 190.2(a)(15)) is that the latter requires an intentional killing, while the former does not. (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309.) CALJIC No. 8.81.15.1 plainly and accurately explained that requirement to the jury. Ly’s argument that the lying-in-wait instruction was constitutionally deficient because it did not include a requirement that defendant intend a “surprise killingâ€� is devoid of merit.
In any event, failure to insert such a requirement as an element to be proved was not prejudicial because it would not have made a difference in the verdict. The record shows that, after disguising his identity and waiting for his confederates to block Seivert’s escape, Ly drew his gun, pointed it at Seivert and emptied three shots directly into the Camry. The evidence was compelling that Ly had lain in wait so he could kill (not merely injure) the victim by surprise. Ly’s claim, even if meritorious, does not survive harmless error review. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.)
IX. Prosecutorial Misconduct
Carroll, Cooc, Dich and Ly contend that the prosecutor committed prejudicial misconduct in misstating the law of self-defense.
Defendants, in closing argument, tried to convince the jury that the killing of Seivert was diminished to manslaughter because of Ly’s perception of the need for self-defense. Thus, Ly’s counsel argued: “[Defendant] Ly . . . gets out of the left rear passenger door immediately to find a Camry with its headlights on and the engine revving moving towards him at a high rate of speed. What he does then is what would be human nature. He’s panicking. . . . [¶] . . . [¶] . . . And that goes back to the whole idea of heat of passion, sudden quarrel and, most importantly, an unreasonable yet honestly held belief that someone had to defend themselves; that’s what you call manslaughter, that’s not what you call murder.â€� Lam’s attorney reasoned, “There’s no reason why those first two bullets couldn’t have been fired in self-defense . . . . [¶] . . . [Y]ou have to think about this in terms of somebody standing there with a car rushing towards them and firing to stop.â€� Dich’s counsel, after reading CALJIC No. 8.50, the instruction distinguishing murder and manslaughter, to the jury, told the jury, “What does that mean? It means the burden is on the district attorney to prove that this was not done in imperfect self-defense before you can even get to murder. . . . [¶] . . . [¶] . . . The physical evidence completely supports a finding that this was done in self-defense, even if that self-defense was unreasonable. [¶] We’re not trying to argue that this was perfect self-defense. We’re saying that this was done with the actual belief in the need to defend his life, [defendant] Ly’s life, not necessarily that it was reasonable, but that’s what he actually thought he needed to do.â€�
When it came the prosecutor’s turn for rebuttal, the following exchange occurred:
“[PROSECUTOR]: Now, I want to talk to you about the arguments that have been made about the shots fired by [Ly]. [¶] The order the shots were fired. Where [Ly] was. And this attempt to argue there was some self-defense. The argument goes, [Ly] was standing in front of the victim’s vehicle. The victim’s vehicle was moving towards him. So, an imperfect self-defense, he had to fire the gun or get hit by the car.
“[LY’S DEFENSE COUNSEL]: Your Honor, I object, that’s not the law.
“THE COURT: Overruled. Just argument.� (Italics added.)
Ly and his codefendants argue that the above italicized comment constituted prejudicial misconduct because the prosecutor suggested that imperfect self-defense adheres to an objective standard, whereas the imperfect self-defense doctrine advocated by defendants is measured by a subjective standard. Stated another way, defendants claim the prosecutor labeled the doctrine “imperfect self-defense,� but described it in the language of perfect self-defense.
Defendants are precluded from bringing this argument for failure to make a proper record in the trial court. In order to preserve a claim of prosecutorial misconduct, a defendant must not only object to the remarks, but also request a curative admonition. (People v. Wash (1993) 6 Cal.4th 215, 265; People v. Wrest (1992) 3 Cal.4th 1088, 1105.) Here, only Ly’s attorney objected, and he failed to ask for an admonition. Because a quick admonition to the jury would have cleared up any misunderstanding of the difference between “perfect� and “imperfect� self-defense, the point is forfeited.
Even if the claim were preserved, we find no reversible misconduct. “‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when 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 [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’� (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
The prosecutor’s remark had no discernible effect on the trial. When the prosecutor said “[Ly] had to fire the gun or get hit by the car,� it was clear from the context of her argument that she meant that Ly believed he had to fire the gun or get hit by the car. Indeed, defense counsel, too, occasionally mixed in perfect self-defense language in urging the jury to apply the doctrine of imperfect self-defense. The argument that the shooting was prompted by Ly’s unreasonable belief in the need for self-defense was well articulated by defense counsel. Moreover, the court fully and accurately instructed the jury on the law of perfect and imperfect self-defense. The jurors were told that if there was any conflict between the argument of counsel and the law contained in the instructions, they should follow the instructions. We presume they followed this admonition. (People v. Avila (2006) 38 Cal.4th 491, 574.) We conclude that no juror could have been misled by the prosecutor’s single remark that, at most, was ambiguous. Any misconduct was harmless.
Ly’s attorney stated, “Do you remember every single one of [the statements attributed to Ly] was attached to the statement ‘he had to’ or ‘he was going to be run over’? [¶] Think about those statements. You can’t have one without the other. One is necessarily encapsulated in the other.â€� Carroll’s attorney argued, “You got a car coming at you who [sic] yells, stop, stop, stop, and it’s not stopping. . . . It’s reasonable that a gun is necessary force to stop the car.â€�
X. Response to Jury Inquiry Regarding Lying in Wait
At one point in their deliberations, the jurors sent a note to the court asking, “We want [to] know[,] can you have [second] [d]egree [m]urder with lying in wait?� With the agreement of all counsel, the court responded, “Please clarify your question. Is your question as to the degree of murder or the special circumstance allegation within the meaning of Penal Code section 190.2(a)(15)?�
The jury came back with the following inquiry: “Is it possible for the jury to find the defendant guilty of second degree murder and lying in wait? [¶] Or, is the finding of lying in wait only significant in determining that the murder is first degree?â€�
The court’s tentative response was to tell the jury that “All murder which is perpetrated by means of lying in wait is murder of the first degree.� There was a divergence of opinion among defense counsel as to the proper response. Cooc’s attorney conceded the accuracy of the trial court’s language, but doubted the response would be helpful to the jury. He later allied himself with Lam’s attorney’s proposal that the court tell the jurors, “first, they must determine that there’s a murder, and then refer them to [CALJIC No.] 8.25 and [tell them] to follow that instruction.� Carroll’s attorney agreed with that suggestion, but wanted the court simply to direct the jurors to the appropriate instruction, without trying to define what they were looking for. Dich’s attorney concurred with this last proposal.
Over the objections of all defense counsel, the court settled on the following response, which it gave to the jury: “All murder which is perpetrated by means of lying in wait is murder of the first degree. You may find it helpful to refer to [CALJIC No.] 8.25 at [page] 000075. If this answer does not sufficiently answer your question, or if you have additional questions, please set them forth in writing.�
Carroll, Cooc, Dich and Lam complain that the trial court committed reversible error by giving this response to the jury’s question. According to this argument, the court should instead have told the jury, pursuant to Woods, supra, 8 Cal.App.4th at page 1579, that an aider and abettor may be guilty of second degree murder, even if the perpetrator committed murder by lying in wait.
In rejecting this same claim on a motion for new trial, the trial court stated: “The Court’s response to the jury’s two questions about lying in wait and second degree murder . . . was a correct statement of the law. The jury did not ask the question that the jurors did in People v. Woods (1992) 8 Cal.App.4th 1570, where the question was whether aiders and abettors could be guilty of a lesser degree of murder than the perpetrator. Here there was no mention of aiders and abettors. Instead the question was addressed to the degree of murder associated with lying in wait. The Court correctly stated all murder committed by means of lying in wait is first degree murder. It referred the jurors to an instruction previously given and invited additional questions. There were none. [¶] The court cannot conjecture that the jurors were actually asking a different question from the one they actually posed.â€�
The court’s ruling and observations were unassailable. The question posed by the jury said nothing about aiding and abetting. The jury wanted to know if a defendant could be found guilty of both second degree murder and lying in wait. The trial court properly answered that all murder committed by lying in wait is that of the first degree and referred it to the applicable jury instruction. The jury, apparently satisfied, asked for no further clarification.
“Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, ‘“the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.�’� (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) “An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.� (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) “‘[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’� (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1533, quoting People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
The trial court’s decision to accurately answer only the question that was asked by the jury was reasonable and proper. No abuse of discretion occurred.
XI. Response to Jury’s Inquiry Regarding Cooc
After reaching a verdict as to four of the five defendants, the jury continued to deliberate on the fate of defendant Cooc. During these deliberations, the jury presented the court with a note that read: “Looking at jury instructions [CALJIC No.] 3.11 regarding testimony of an accomplice and [CALJIC No.] 3.12 relating to [the] corr[o]boration of accomplice testimony, it appears that the jury cannot consider accomplice testimony alone. If the jury finds that the testimony of multiple accomplices point[s] to a reasonable conclusion, can circumstantial evidence (although inconclusive in itself) along with accomplice testimony connect the defendant with the commission of a crime.�
Following an unreported conference the court, with the concurrence of all counsel, gave the following response to the jury: “[CALJIC No.] 3.13 . . . provides that the required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of his accomplices, but must come from other evidence. [¶] Circumstantial evidence can be considered by you to corroborate the testimony of an accomplice. In this regard, please consider, as you point out, [CALJIC No.] 3.12, at page 000039, which provides as follows: [repetition of CALJIC No. 3.12 regarding accomplice corroboration]. [¶] Also, please consider [CALJIC No.] 2.01 . . ., which provides as follows: [repetition of CALJIC No. 2.01 regarding circumstantial evidence]. [¶] After considering the above, if you have additional questions, please submit them.â€�
While acknowledging the response was given with defense counsel’s blessing, Cooc claims it was insufficient and that trial counsel was ineffective for agreeing to it. The jurors should have been told, Cooc asserts “that they should give no further consideration to circumstantial evidence tending to connect [defendant] Cooc to this offense, if they concluded that Johnson Phan was an accomplice.� This remarkable proposal is predicated on the assumption that the jury must have concluded that Phan was an accomplice and that the corroborative evidence connecting Cooc to the murder was inadequate or nonexistent.
It is a well-established principle that when a defendant approves of the trial court’s response to a jury question during deliberations, any claim of error with respect to that response is forfeited. (People v. Bohana (2000) 84 Cal.App.4th 360, 373; see also People v. Medina (1990) 51 Cal.3d 870, 902.) Since trial counsel approved of the instruction, the doctrine of invited error applies and we do not entertain the argument.
We also reject Cooc’s standby claim that if the error was invited, his attorney deprived him of effective assistance of counsel. “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions.� (People v. Frye (1998) 18 Cal.4th 894, 979.) Cooc does not dispute that the instructions correctly stated the law. Accordingly, he has failed to overcome the presumption that defense counsel’s agreement to give them fell within the range of reasonable assistance. (See People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel�].)
XII. Jury Coercion Regarding Cooc
The jurors reported that they were deadlocked on the fate of Cooc, after having reached verdicts as to the other defendants. In response to the court’s inquiry, the jury advised that it had taken nine votes on the verdict and that the split on the last ballot was nine to three. The jury also answered negatively when asked if further instructions or testimony readback would be of assistance.
Subsequently, the court received word from the court attendant that Juror No. 10 told him that the foreperson had talked about the case in the elevator and that he [Juror No. 10] wanted the judge to know the foreperson was “the stickler.� The court then interviewed each juror separately about the alleged elevator statement. Each of the jurors except Juror No. 10 denied hearing any discussion about the case in the elevator. Juror No. 10 maintained that Juror No. 7 said, while in the elevator and in the presence of other jurors, that he was not going to change his vote. Juror No. 7 adamantly denied making the statement in the elevator, claiming he had said it in the jury room.
At that point, Cooc’s counsel conceded that there had been no provable jury misconduct, but asked for a mistrial, apparently on the ground of a hopelessly deadlocked jury. Without ruling on the motion and at the suggestion of the prosecutor, the court decided to give the jury an instruction to deadlocked juries that was approved by this court in People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1122 (Moore).) The Moore instruction tells the jurors that their goal “should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so�; that it was their duty to “discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors�; that “[i]n the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs�; that “[f]air and effective jury deliberations require a frank and forthright exchange of views�; that “each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors�; and that “[i]t is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.� The instruction also encourages the jurors to consider trying new methods in conducting their deliberations, such as reversing roles and advocating for a position not held by the individual juror. (Id. at pp. 1118-1119.) Without objection, the court read the Moore instruction to the jury, and suggested the jury reread CALJIC Nos. 1.00, 17.40 and 17.41, which offer guidance in conducting jury deliberations.
Cooc claims the “totality of the circumstances,� including the court’s refusal to poll the jury regarding prospects for a verdict, the court’s “intrusive questioning� of individual jurors regarding the alleged statement in the elevator and the giving of the Moore instruction, amounted to jury coercion by the trial court. The argument borders on the frivolous.
Cooc’s trial attorney acquiesced to the entire course of judicial conduct which Cooc now claims constituted coercion. By doing so, he has forfeited the claim on appeal. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038.)
Although Cooc’s counsel moved for a mistrial after the court finished interviewing the jurors, he did not base the motion on jury coercion. In any event, his failure to press for a ruling on the motion prevents him from raising any complaint in connection therewith on appeal. (People v. Braxton (2004) 34 Cal.4th 798, 813; People v. Obie (1974) 41 Cal.App.3d 744, 750, disapproved on different grounds in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4.)
In any event, we see no impropriety. A neutral inquiry into the jury’s numerical division on a verdict has long been held a proper exercise of the court’s inherent authority over jury deliberations. (People v. Rodriguez (1986) 42 Cal.3d 730, 776, fn. 14; People v. Carter (1968) 68 Cal.2d 810, 815.) The court’s questioning of the jurors following the alleged “elevator� comment was also beyond reproach. The record provides no support for Cooc’s assertion that the judge sent a “clear message� that she did not believe the holdout juror’s denial of misconduct. Finally, we reject Cooc’s argument that the Moore instruction is inherently coercive. As we stated in Moore, “[n]othing in the trial court’s charge was designed to coerce the jury into returning a verdict. [Citation.] Instead, the charge simply reminded the jurors of their duty to attempt to reach an accommodation.� (Moore, supra, 96 Cal.App.4th at p. 1121.) Both individually and collectively, Cooc’s accusations of jury coercion fail miserably.
Use of the Moore instruction has also been approved by the Court of Appeal for the Sixth Appellate District in People v. Whaley (2007) 152 Cal.App.4th 968, 984.
XIII. Section 1538.5 Suppression Ruling
Prior to trial, Dich moved to suppress admission of the .38 revolver that was found in his home on January 12, 2004, on the ground that the warrantless search violated his Fourth Amendment rights. Following an Evidence Code section 402 hearing, the trial court denied the motion, concluding that Dich’s consent to the search was voluntary and not the product of an earlier, allegedly coercive, custodial interrogation.
Dich now contends that the trial court erred in denying his motion to suppress the firearm acquired from him at his home, claiming his consent to the search was coerced.
“As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to . . . respondents since ‘all factual conflicts must be resolved in the manner most favorable to the [superior] court’s disposition on the [suppression] motion.’â€� (People v. Woods (1999) 21 Cal.4th 668, 673.)
Viewed in the light most favorable to the People, the record at the Evidence Code section 402 hearing revealed the following:
On January 10, Detective Charles Husted visited the Dich residence in connection with his investigation of the Seivert shooting. His purpose was to obtain a statement from Dich and to serve a search warrant for the Honda Pilot owned by Dich’s mother.
At the time of his trial testimony, Husted was a patrol sergeant for the City of Sacramento Police Department.
Dich’s mother answered the door and directed Detective Husted and his partner to Dich’s room. Dich was sleeping, so his mother awakened him. Husted explained that he was investigating the shooting and asked if he could search the bedroom for evidence of a homicide. Dich and his brother, with whom he shared the bedroom, both agreed.
Detective Husted also asked if Dich would accompany him to the police station to give a statement regarding the shooting of Seivert. Dich “was receptive� and agreed to go down to the station. At the police station, Dich gave an interview regarding the shooting. At the outset, Husted thanked Dich for being cooperative and assured him that he was not under arrest and was not in custody. Dich confirmed that he understood. At no time did Dich ask to leave or indicate a desire to terminate the interview. When the interview was over, Dich asked Husted for his business card, and the officer gave him cab fare for a ride home.
Detective Husted returned to Dich’s house on January 12, after Ly had told him that he gave Dich the murder weapon. Dich answered the door and invited the officer in. Husted explained that Ly had told him that Dich had the gun used to shoot Seivert. Dich denied it. Husted replied that there was no reason to lie, and urged Dich to be honest about whether Ly gave him the gun. At that point, Dich admitted he had the gun, escorted Husted to his sister’s bedroom and pointed out the gun’s location in the closet.
Dich gave a much different account of his encounters with the police. He testified that he did not feel he could refuse to go to the police station with the officers after they entered his home on January 10, that he did not agree to go with the officers to the police station, that the officers never asked for his consent to search his room, and that Detective Husted told him on the way to the interview that he would only be a witness.
Dich stated that on January 12, two officers woke him up by knocking on his bedroom window, flashed their badges at him and ordered him to “open up.� The officers never asked for permission to enter and Dich felt he could not keep them out of the house. When Dich initially denied he had possession of the murder weapon, the officers told him that if he continued to lie and did not surrender the gun, they would arrest him and charge him with murder. After 10 to 15 minutes of denials, Dich finally led the officers to the gun in the closet.
Dich’s argument that his consent to the search was coerced is fatally flawed because it relies principally on his own testimony at the Evidence Code section 402 hearing. However, it was the trial court’s duty to resolve the conflict and make factual findings as to what occurred. As a reviewing court, it is not our function to second-guess the trial court on matters of credibility. (People v. Woods, supra, 21 Cal.4th at pp. 673-674; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
Thus, we must defer to the trial court’s implied determination that the officer’s testimony was credible and Dich’s was not. Detective Husted’s testimony that Dich was cooperative at all times, freely accompanied the officers to the interview, invited the officers into his home on January 12, was never threatened, and voluntarily directed the officers to the murder weapon after being urged not to lie, was more than sufficient to warrant rejection of Dich’s claim that the search of his home was coerced. The trial court’s denial of the suppression motion was free from error.
XIV. Ly’s Parole Revocation Fine
Ly argues, the Attorney General agrees, and we concur that since the trial court never imposed a parole revocation fine, it should not have appeared in the abstract of judgment or court minutes. Even apart from the discrepancy, because Ly’s sentence precludes a grant of parole, the fine was improper. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186; § 1202.45.) We shall order the abstract and clerk’s minutes corrected accordingly.
DISPOSITION
The judgments are affirmed. The trial court is directed to correct the abstract of judgment and clerk’s minutes to delete all mention of a parole revocation fine as to defendant Ly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., HULL, J.