Opinion
C063674 Super. Ct. No. SF105792A
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SETH MACIEL et al., Defendants and Appellants.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a botched burglary that ended in a senseless homicide, defendants Daniel Seth Maciel and Travis Leon Carter were each convicted by a jury of murder. Maciel was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and attempted residential burglary (§ 664/459); Carter was convicted of first degree murder with special circumstances (§ 190.2, subd. (a)(17)(A) & (G)), attempted burglary (§ 664/459) and attempted robbery (§ 664/211), with personal use of a firearm (§ 12022.53, subd. (d)). The trial court sustained three strike allegations against Carter. Each defendant received life sentences in state prison.
Undesignated statutory references are to the Penal Code.
Maciel and Carter appeal their convictions, claiming instructional error and ineffective assistance of counsel, as well as evidentiary and sentencing errors. We shall affirm the judgments as modified and shall order corrections and amendments to defendants' abstracts of judgment.
A third defendant, Roy Thierry, was tried along with Carter and Maciel. The jury was unable to reach a verdict on any of the charges, and a mistrial was declared as to Thierry. Thierry later pleaded guilty to voluntary manslaughter with arming by a principle.
FACTUAL BACKGROUND
In December 2007 (all unspecified calendar dates are to that year), Eugene Snyder (also known as "Bear") and his girlfriend, Reyna Ahumada, were leasing an apartment on Alturas Avenue in Stockton. Maciel was Snyder's best friend. Maciel and his girlfriend, Debbie Perez, shared the apartment; they lived in their own room and paid rent. Maciel and Snyder sold marijuana together; Snyder sold it out of the apartment and Maciel sold it on the street. They made enough money to break even, with enough left over to smoke for themselves.
Sometime around Thanksgiving, Snyder and Maciel got into an argument. Snyder wanted Maciel to turn himself in on an outstanding warrant and serve jail time so he could get back on his feet and support his family. At the end of the argument, Snyder told Maciel to leave, and Maciel eventually left for a few days.
As a result of the argument, Maciel was "mad" at Snyder. He told his girlfriend Perez he "wanted something to happen to Bear" (Snyder). He divulged to her that he was going to have Jaime Baro, who sometimes bought marijuana from him, do a "robbery" at Snyder's house.
After leaving the apartment, Maciel planned to turn himself in and report to jail. Before he did so, however, he instructed Baro to break in to the apartment and take Snyder's marijuana and cash. Maciel made Baro a copy of the key and told him to enter when Snyder was not home. Perez was supposed to let Baro know when Snyder was absent. Maciel told Baro that the marijuana and money would be in the top drawer of Snyder's bedroom dresser.
Baro was charged and faced a life sentence in connection with this case, but accepted a plea in exchange for his testimony. He gave several different versions of his instructions from Maciel, including the one recited above. Baro said that Maciel wanted him to "get his stuff back," meaning his (Maciel's) money and marijuana. On another occasion, Baro stated that Maciel wanted to get his marijuana back, because he had paid for it and Snyder was not giving it to him. Under cross-examination Baro conceded that after Maciel gave him the key, he (Baro) decided he would take "other property" from Snyder's residence and split it with Thierry, whom he enlisted as an accomplice. Baro, who was 16 years old at the time, admitted he was "a little out of control," was drinking alcohol, smoking marijuana, taking ecstasy pills, and using methamphetamine.
A week before the shooting, Maciel came back to pick up some belongings before turning himself in to serve jail time. He entered jail on December 4.
Baro enlisted Thierry (aka "Poppa"), who was dating Baro's sister, to help him carry out Maciel's plan. On December 10, the two men went to Snyder's apartment, but left when they discovered that "people were home."
On December 11, Baro went alone to Snyder's apartment to warn Perez that she should leave. A short time later, Perez saw Baro on the street and told him she was going to her cousin's. Baro replied that was good, because "something was gonna happen to the house."
After leaving Perez, Baro went to a nearby apartment to get Thierry. Thierry brought along Carter, whom Baro had never met before. With Carter driving his girlfriend's car, the trio arrived at Snyder's apartment. Thierry and Carter got out and went up to the apartment, while Baro stayed in the car.
Snyder and Ahumada were inside the apartment cooking. There was a knock at the door. Someone asked for Maciel. Snyder replied that Maciel was not home. The person, who identified himself as "Tone," said he wanted to buy marijuana. Snyder partially opened the door and saw an African-American male he later identified as Carter, standing about eight feet from the door. Carter told him to lie down. Snyder noticed Carter was concealing something that might have been a gun. Snyder attempted to shut the door, but it bounced back. He then called Ahumada over to help.
Suddenly, multiple shots were fired through the door. Carter and Thierry fled and got in the car, with Baro driving. Baro, who had heard multiple gunshots, saw Carter put a square-shaped gun into his waistband. Thierry angrily asked Carter, "Why'd you do that?" Carter replied that he shot through the front door because Snyder had tried to close it.
Ahumada was taken to the emergency room with multiple injuries to her collarbone, kidney, liver and pancreas. She was released from the hospital on December 31, 2007, but was readmitted on January 6, 2008, with symptoms of fever and nausea. Ahumada died the next day due to complications from her gunshot wounds.
In a jailhouse interview, Maciel was asked if he could think of a reason for the shooting. He replied, "Maybe someone tried to jack him [Snyder] for his stash."
No defendant testified. Carter put on expert testimony questioning the reliability of eyewitness identification.
I. Maciel's Appeal
A. Failure to Instruct on the Gauze Defense
People v. Gauze (1975) 15 Cal.3d 709 (Gauze).
The jury was instructed on the elements of burglary and robbery, on aiding and abetting, on felony-murder based on accomplice liability, and on the elements of theft.
Relying on Gauze, supra, 15 Cal.3d 709, Maciel claims that while these instructions were correct as far as they went, they were inadequate because they did not convey to the jury the crucial concept that he could not be guilty of burglary if he had an unconditional right to enter the apartment. Second, the trial court should have, sua sponte, instructed the jury that Maciel could not be guilty of theft if his intent was only to retrieve his own property. We discuss these points separately.
Regrettably, Maciel has not provided us with either a verbatim or even a paraphrased version of the jury instructions he contends should have been given. These omissions ordinarily would result in a forfeiture of his arguments. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [reviewing court need not discuss arguments that are insufficiently developed]; SuperValu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 84 [in an insurance dispute, failure of appellant to cite precise "policy language" that supported appellant's contentions forfeited arguments on the point].) Nevertheless, we will address the claims as we perceive them, to avoid future habeas claims based on ineffective assistance of appellate counsel.
B. Gauze Instruction
In Gauze, our Supreme Court held the defendant could not be convicted of burglary for entering his own apartment for the purpose of shooting his roommate. The court explained that since one of the primary purposes of the burglary statute was to protect against a trespassory intrusion into the home, no burglary can be perpetrated by one who has the absolute right to enter. (Gauze, supra, 15 Cal.3d at p. 714.)
"In the absence of a request for a particular instruction, a trial court's obligation to instruct on a particular defense arises '"only if [(1)] it appears that the defendant is relying on such a defense, or [(2)] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case."'" (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.)
We need not decide whether a Gauze instruction was a pinpoint instruction affecting an element of the burglary charge or an instruction on an affirmative defense to burglary, for in all criminal cases, "even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Earp (1999) 20 Cal.4th 826, 885.)
The Attorney General claims a Gauze instruction was not required because Maciel did not "rely" on a possessory right defense and there was no substantial evidence that he had an unconditional right to enter the premises. The first assertion, stated without supporting citation to the record, is irrelevant, since a court's sua sponte duty to instruct arises so long as the instruction was not inconsistent with the defense and there was substantial evidence to support it. (People v. Breverman (1998) 19 Cal.4th 142, 157.)
As to the second point, the Attorney General is mistaken. There was indeed substantial evidence from which a jury could conclude that Maciel had an unconditional possessory right to enter the apartment.
Substantial evidence is "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not consider the credibility of witnesses in determining whether there is substantial evidence. (People v. Elize (1999) 71 Cal.App.4th 605, 615.)
At the time of the shooting, Perez and Maciel were sharing the apartment with Snyder and Ahumada. They paid rent and had their own room. The rent for December was paid up and Perez continued to live in the apartment even after Maciel went to jail. Snyder testified that after he and Maciel got into the argument, Maciel went away for a few days, but Snyder never excluded him from the apartment, and Maciel was welcome to return as soon as he finished his jail sentence. Finally, since Maciel had his own key, he could enter the apartment at will.
All of that having been said, we conclude no instruction on Gauze was required under the facts of this case. Gauze is distinguishable because there the defendant personally entered premises to which he had an absolute possessory right. The rationale of Gauze is that a fundamental purpose of the burglary statute is the protection of the right of an occupant to peaceful possession of the premises against an intruder. (Gauze, supra, 15 Cal.3d at p. 715.) Where the defendant enters a building to which he already has an unconditional possessory right, the raison d'être for the offense is lacking. In the words of Gauze:"[W]e conclude that defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly, defendant had an absolute right to enter the apartment. This right, unlike that of the store thief in [People v.] Barry [(1892) 94 Cal. 481], did not derive from an implied invitation to the public to enter for legal purposes. It was a personal right that could not be conditioned on the consent of defendant's roommates. Defendant could not be 'refused admission at the threshold' of his apartment, or be 'ejected from the premises after the entry was accomplished.' [Citation.] He could not, accordingly, commit a burglary in his own home." (Gauze, supra, 15 Cal.3d at p. 714.)
Unlike the defendant in Gauze, however, Maciel was not prosecuted for entering his own apartment with the intent to steal (which, of course, was physically impossible given his jail confinement at the time). Maciel's guilt on the charge of burglary depended solely on his status as Baro's accomplice. It was Baro's intent to enter the apartment with theft as the objective that made the conduct unlawful. And Baro, most certainly, had no possessory right to enter Snyder's apartment.
There was overwhelming evidence that Baro and his accomplices attempted to enter Snyder's apartment with a felonious purpose. As Maciel concedes, the jury was correctly instructed that, to be guilty on an aiding and abetting theory, the defendant must know of the perpetrator's intent to commit a crime, share that intent, and "aid, facilitate, promote, encourage, or instigate" the perpetrator's commission of the crime.
Thus, under the instructions given, in order to find Maciel guilty of attempted burglary, the jury had to find that (1) Baro intended to enter the apartment with the intent to steal Snyder's property; (2) Maciel shared this intent; and (3) Maciel instigated, facilitated, or assisted Baro in that endeavor.
The fortuitous fact that Maciel aided Baro's larcenous intent by giving him a key to the apartment, did not preclude Maciel from being liable for attempted burglary. It was Baro who, through his confederates, attempted to enter a building to which he had no possessory right. It was his mental state that formed the predicate to attempted burglary. And if Maciel shared that intent and facilitated the act, Maciel could be found equally guilty of attempted burglary under an accomplice theory. (§ 31.)
We conclude that Gauze has no application where the sole theory of liability for burglary is aiding and abetting a felonious entry into a building by a perpetrator who has no occupancy rights. Our conclusion is consistent with the rationale underlying Gauze. As the Supreme Court put it, "In contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic is engendered, and no violence necessarily erupts merely because he walks into his house. To impose sanctions for burglary would in effect punish him twice for the crime he committed while in the house. In such circumstances it serves no purpose to apply section 459." (Gauze, supra, 15 Cal.3d at pp. 715-716, italics added.)
By contrast, the entry into a home by one who has no right to enter poses all of the dangers cited in Gauz-dangers that, unfortunately, came to frightful realization in this case. Consequently, the imposition of liability upon Maciel for aiding Baro's unlawful attempted entry into the apartment is fully consistent with the legislative intent behind the burglary statute.
In sum, the principle that one cannot be guilty of burglarizing his own home was not one that was closely and openly connected to the jury's understanding of this case. A Gauze instruction was not necessary.
C. Claim-of-right Defense
Maciel claims there was substantial evidence that his intent in directing Baro to enter the property was either to retrieve property that was already his or property that he jointly owned with Snyder. For this reason, he argues that it was error for the trial court to instruct on theft without also "explaining the significance of [Maciel's] ownership interest in the marijuana."
This argument evokes the "claim-of-right" defense. (CALCRIM No. 1863.) As explained by the California Supreme Court, "a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga).)Although, as the Attorney General points out, CALCRIM No. 1800 instructed the jury that, to be guilty of theft, the defendant must take possession of property "owned by someone else" (italics added), the jury was never told that a defendant who takes property under a good faith belief that he owns it cannot be guilty of robbery or theft.
The claim-of-right defense would necessarily impact the burglary charge, since theft was the target crime on which that charge rested.
Where it appears a defendant is relying on a claim-of-right defense, or there is substantial evidence to support such a defense, the trial court has a duty to instruct the jury on that defense sua sponte. (People v. Creath (1995) 31 Cal.App.4th 312, 319; People v. Stewart (1976) 16 Cal.3d 133, 140-142.) The instruction must be given where there is substantial evidence "to support an inference that the defendant '"acted with a subjective belief [that] he or she had a lawful claim on the property."'" (People v. Russell (2006) 144 Cal.App.4th 1415, 1429-1430, quoting People v. Barnett (1998) 17 Cal.4th 1044, 1145, italics omitted.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
As indicated in footnote 3, ante, Baro's conflicting testimony about Maciel's instructions to him could give rise to an inference that Maciel asked Baro to retrieve property he believed was rightfully his. During his testimony Baro said that Maciel told him he wanted to "get his stuff back." (Italics added.) At another point, Baro said Maciel sent him to retrieve his (Maciel's) money and marijuana. Still later, Baro testified that Maciel said he wanted to retrieve his marijuana, because he had paid for it and "Bear [Snyder] was not giving it back to him." In light of the principle that "[d]oubts as to the sufficiency of the evidence to warrant the instruction [must] be resolved in favor of the accused," we conclude there was sufficient evidence to justify an instruction on the claim-of-right defense. (Tufunga, supra, 21 Cal.4th at p. 944.)
The California Supreme Court has "not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense." (People v. Salas (2006) 37 Cal.4th 967, 984.) We need not resolve that issue, for we find that the failure to instruct was harmless under either a Watson or a Chapman standard. (See People v. Williams (2009) 176 Cal.App.4th 1521, 1530 (Williams).)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Chapman v. California (1967) 386 U.S. 18, 24 .
First of all, this was not a typical claim-of-right case, where the defendant testifies that his intent was to seize or reclaim his own property. The only issue for the jury was which portion of Baro's testimony to believe: Did Maciel tell Baro to get his marijuana (and money) back, or did he instruct Baro to take Snyder's weed and cash? On this point, compelling evidence pointed to the latter version.
Maciel's recruitment of Baro occurred immediately after a argument between Maciel and Snyder, an argument so intense that Maciel left the apartment for several days. Maciel's girlfriend Perez testified that Maciel was "mad" at Snyder. Maciel told her that he wanted someone to "fight" Snyder, that something was going to happen to Snyder and, finally, that Baro was going to do a "robbery" of Snyder because he did not want Snyder to have any marijuana. Maciel copied a key for Baro and instructed him to enter when Snyder was not home. Maciel told Baro that the marijuana and cash would be found in Snyder's bedroom dresser. Perez was supposed to alert Baro when Snyder was away and Baro warned Perez to leave just prior to the attempted entry because "something was going to happen to the house." The plot was hatched just before Maciel voluntarily turned himself in to serve a jail sentence. Finally, when the police asked Maciel if he could think of a motive for the crime, he replied, "Maybe someone tried to jack [Snyder] for his stash."
Given this mosaic of evidence, it was highly implausible that a jury given the omitted instruction would have concluded that Maciel enlisted Baro for the mundane purpose of retrieving his own property. After all, Perez was still residing in the apartment and was readily available to retrieve any of Maciel's property without incident. The evidence clearly showed that Maciel had a grudge against Snyder and wanted to punish him. Maciel could not achieve this objective by merely hiring a casual acquaintance to retrieve his own property.
Moreover, although she did not use the term of art, Maciel's counsel highlighted the claim-of-right defense in her closing argument. She reminded the jury that Baro testified that "my client [Maciel] asked him to go in and get his marijuana when nobody was home, using his key." (Italics added.) She continued, "The attempted burglary. Again, if you believe Jaime Baro, what did my client ask him to do? Get his own marijuana. [¶] The section [sic] requires that you enter with the intention of committing a theft. And you will look at the . . . jury instruction that defines that. Is that a crime, to have someone go in and get your own marijuana? No." (Italics added.)
In rebuttal, the prosecutor sarcastically belittled this argument: "My marijuana. My marijuana. My marijuana. My marijuana happens to be in Eugene Snyder's drawer and instead of asking my girlfriend to get it I'm going to come up with a plan to burglarize it."
Under the instructions given, the jury had to find that, in order to be guilty of theft, it must be proven that the defendant intended to take property "owned by someone else." By finding Maciel guilty of attempted burglary, the jury necessarily rejected the idea that Maciel intended that Baro obtain property that already belonged to Maciel.
Our review of the evidence, the arguments of counsel and the jury's verdict convince us that any failure to give instructions pertaining to a claim-of-right defense was harmless beyond a reasonable doubt. (Williams, supra, 176 Cal.App.4th at p. 1531.)
II. Carter's Appeal
A. Exclusion of the Hearsay Statement of Pokres
Prior to trial, Carter sought to introduce a series of statements that Mathew Pokres made to the police. According to the offer of proof, Pokres voluntarily contacted law enforcement after the shooting, and was interviewed by a detective. In the interview, Pokres stated that he had been familiar with the parties involved in the shooting; that the day after the shooting Baro admitted that he had participated in a home invasion of Bear's (Snyder's) apartment; and that Baro said that Thierry had shot Ahumada through the door. The statements tended to undermine the prosecution's theory that Carter was the shooter.
Carter's attorney informed the court that he had subpoenaed Pokres and was trying to locate him. Nevertheless, counsel argued that even if Pokres did not testify, his statements to the police, despite their hearsay character, bore sufficient indicia of trustworthiness that they should be admitted under the due process clause to protect his client's right to present a defense.
As will be discussed, Pokres was eventually brought into court, but refused to testify on Fifth Amendment grounds. Had he testified, the police statements might have been used to impeach him. (Evid. Code, § 1235 [prior inconsistent statements].)
The trial court denied the motion, ruling that Pokres's statements to the police were neither reliable nor trustworthy enough to be admissible if Pokres were unavailable.
Relying primarily on Chambers v. Mississippi (1973) 410 U.S. 284, 298 [35 L.Ed.2d 297, 310-311] (Chambers),Carter claims that the trial court prejudicially erred in not admitting Pokres's hearsay statements.
Chambers involved an extraordinary situation where statements from three different witnesses that a third party had confessed to the crime for which the defendant was on trial were prevented by the state's hearsay rules from being admitted in the defendant's murder trial. (Chambers, supra, 410 U.S. at pp. 287-290 [35 L.Ed.2d at pp. 304-305].) The United States Supreme Court ruled that where such exculpatory evidence directly affecting the ascertainment of guilt is implicated, a mechanical application of the hearsay rule deprived Chambers of a fair trial under the due process clause. (Chambers, at pp. 302-303 .)
The evidence sought to be admitted in this case is a far cry from the crucial exculpatory evidence considered in Chambers. The proposed testimony did not give rise to an alibi defense or suggest that Carter was not one of the burglars. It consisted of volunteered statements by a stranger with no connection to the crime, which might have conflicted with Baro's expected testimony that Carter fired the gun. Pokres's hearsay statements were not made under oath, nor did they constitute declarations against penal interest. Such tangential evidence does not rise to the level of a Chambers violation. (See People v. Hawthorne (1992) 4 Cal.4th 43, 58 [the exclusion of evidence merely impeaching a witness's recollection of police identification procedures does not implicate the Chambers rule]; see also People v. Cudjo (1993) 6 Cal.4th 585, 611 ["'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.'"].)
In any event, the court's exclusion of Pokres's statements was harmless beyond a reasonable doubt. Both Baro and Snyder gave compelling testimony pointing to Carter as the gunman. There was no realistic possibility the jury would have cast all of this evidence aside in favor of a hearsay statement offered by a stranger with no connection to the crime or anything to lose by inculpating Baro.
B. Rebuttal Evidence
On direct examination, Snyder testified that he could not recall whether he identified Carter as the gunman to the responding officers, but did remember telling Detective Michael George that he recognized the shooter because he had talked to him in county jail. After Ahumada's death, Snyder picked out Carter's photo from a photographic lineup.
During the defense case, psychologist Geoffrey Loftus, Ph.D., provided expert testimony challenging Snyder's identification of Carter. Loftus pointed out a number of factors that cast doubt on its accuracy.
Over Carter's strenuous objection that it was improper rebuttal, the prosecutor was then allowed to call Officer Eric Azarvand, who testified that he was dispatched to the scene of the crime, that Snyder had given a detailed description of the shooter and that he told the officer that he did not know the shooter but had possibly seen him before in county jail.
Carter contends the trial court abused its discretion in admitting Officer Azarvand's testimony, claiming it was not proper rebuttal and that it allowed the prosecution to magnify the effect of Snyder's identification.
We need not reach the merits of this argument, because "any error must be seen as harmless in that there is no reasonable probability of a more favorable result" had the rebuttal evidence been excluded. (People v. Jordan (2003) 108 Cal.App.4th 349, 366.)
Officer Azarvand's direct examination takes up barely more than a page of transcript. Carter does not contend the testimony was surprising or even unexpected. His only claim is that it should have been presented during the prosecution's case-in-chief.
Since Snyder's memory had previously been refreshed by showing him Officer Azarvand's report, having the officer peruse the same report and corroborate Snyder's identification could not possibly have had a measurable effect on the outcome of the trial. Any error was surely harmless. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.)
Carter's claim that the admission of improper rebuttal evidence amounts to a federal constitutional violation is contrary to settled law (People v. Boyette (2002) 29 Cal.4th 381, 427-428), and undeserving of further discussion.
C. Ineffective Assistance
During his direct examination, Dr. Loftus suggested that if the circumstances surrounding an eyewitness's initial identification are favorable, then high confidence in the identification may be associated with accuracy. However, if the circumstances surrounding the initial identification were poor (as he suggested they were in Snyder's case), then there is no correlation between confidence and accuracy.
The jury was given CALCRIM No. 315 listing the factors that the jurors should consider in weighing eyewitness identification. One of the factors is: "How certain was the witness when he or she made an identification?" During closing argument, the prosecutor asserted that Dr. Loftus's testimony regarding the unimportance of "certainty" should be disregarded because it was inconsistent with the jury instruction.
Based on this sequence, Carter concludes that trial counsel was ineffective for not requesting that the "certainty" factor be deleted from the jury instruction and for failing to object to the prosecutor's argument.
The only authority Carter cites to support the claim that the certainty factor does not belong in a jury instruction on eyewitness testimony is Brodes v. State (2005) 279 Ga. 435, 442 [614 S.E.2d 766, 771]. Brodes, however, is an out-of-state decision and therefore is not binding on this court.
On the other hand, the California Supreme Court has concluded that CALJIC No. 2.92 (which includes the certainty factor) provides proper guidance to the jury on the factors related to eyewitness identification, and that any explanation of the effects of those factors, including the lack of correlation between confidence and accuracy, should be "left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate." (People v. Wright (1988) 45 Cal.3d 1126, 1143.) In sum, our Supreme Court has issued a decision against Carter on this point, and we are obligated to follow its precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Since both the jury instruction and the prosecutor's argument were proper, trial counsel cannot be faulted for failing to object to either. Carter's ineffective assistance claim must fail.
D. In Camera Hearing re Pokres
As indicated previously, Pokres gave a pretrial interview to the police during which he said that Baro told him Thierry had fired through the front door during the attempted robbery at Snyder's apartment. When Pokres did not respond to a subpoena, he was brought into court and counsel was appointed for him. The attorney stated that she had spoken to her client and that he would be invoking his Fifth Amendment privilege not to testify.
The trial court ruled that where a nonparty witness announces an intention to claim the privilege against self-incrimination, it is proper to hold a hearing outside the jury's presence for the purpose of determining whether the privilege is properly invoked. Pokres's counsel requested that the hearing be held in camera, with only counsel and her client present. The court agreed, overruling an objection by Carter's attorney that he also had a right to be present. Thereafter, an in camera hearing was held and the court ruled that Pokres's invocation of the Fifth Amendment was based on good cause.
Carter now claims this procedure violated his right to have counsel present at all stages of the proceeding. Alternatively, he requests that this court review the sealed transcript of the in camera hearing to determine whether the trial court erred in permitting Pokres to invoke his Fifth Amendment privilege.
Carter's argument fails. Under Evidence Code section 915, where there is a potential conflict between a third party witness's privilege against self-incrimination and the privilege against disclosure of attorney-client confidences, the trial court may conduct an in camera hearing without the presence of the defendant or his counsel. (People v. Manago (1990) 220 Cal.App.3d 982, 989-990, abrogation on another point recognized in People v. Taylor (2009) 47 Cal.4th 850, 874.) The Manago case controls here, and Carter's attempts to distinguish or criticize it are unpersuasive.
We have granted Carter's request to review the sealed transcript. Based on our review, we conclude that the trial court properly upheld the claim of privilege. No error appears.
E. Cumulative Error
Carter asserts that if any of the assignments of trial error are individually insufficient to warrant reversal, their cumulative effect warrants it. Based on the foregoing discussion, we reject the claim.
F. The Attempted Burglary Sentence Should Be Stayed
Carter was convicted of first degree murder of Ahumada with special circumstances (predicated on attempted burglary and attempted robbery), as well as attempted burglary (count 2) and attempted robbery (count 3). Ahumada and Snyder were named as victims in the latter two counts. The trial court sentenced Carter to concurrent terms on both counts 2 and 3. Carter claims that the punishment for the attempted burglary count should have been stayed. The Attorney General concedes the point and we agree.
Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; People v. Harrison (1989) 48 Cal.3d 321, 335.) There is no dispute that the attempted burglary, attempted robbery and murder were part of an indivisible course of conduct.
Under the "multiple victim" exception to section 654, however, as long as each violent offense is attributable to a separate victim, a defendant may be punished for both crimes. (People v. Miller (1977) 18 Cal.3d 873, 885-886.) Thus, Carter could be convicted and punished for both felony-murder and attempted robbery, since Ahumada was the victim of the murder and Snyder the victim of the attempted robbery. (People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312.)
However, the attempted burglary conviction does not fall within the multiple victim exception and must be stayed, since it arose out of the same indivisible transaction as the other two counts. We shall order the punishment on count 2 stayed.
III. Corrections and Amendments to Abstracts of Judgment
Carter requests correction of two errors in his abstracts of judgment. The Attorney General has no objection.
First, Carter's abstract of judgment for his determinate sentence at item 11 incorrectly attributes a firearm enhancement (§ 12022.53, subd. (d)) to both counts 2 (attempted burglary) and 3 (attempted robbery), when it was actually attached only to count 3. This shall be corrected to reflect "ENHANCEMENT IN COUNT 3."
Second, the trial court ordered that $9,840 in victim restitution be payable to the victims. However, the record shows the victims had submitted claims in that amount to the state Victim Compensation Board (the Board). The claim was paid by the Board; consequently, Carter's obligation was to reimburse the Board for $9,840. Accordingly, Carter's indeterminate abstract of judgment at item 9.b. must be amended to indicate that restitution shall be payable to the Board rather than to the victims.
Maciel's indeterminate abstract of judgment contains the same error, and therefore must be amended as well.
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DISPOSITION
The indeterminate abstract of judgment in each defendant's case is amended at item 9.b. to reflect that the order for $9,840 in victim restitution (§ 1202.4) shall be payable to the Board rather than to the victims.
The determinate abstract of judgment in Carter's case is amended to indicate that the term for the attempted burglary count (count 2) is stayed, such stay to become permanent upon completion of the remainder of his sentence. This judgment is also corrected at item 11 to reflect that the firearm enhancement (§ 12022.53, subd. (d)) is attached only to the attempted robbery count (count 3). The trial court shall forward a certified copy of the corrected and amended abstracts to the Department of Corrections and Rehabilitation. As so modified, the judgments are affirmed.
BUTZ, J. We concur:
HULL, Acting P. J.
MURRAY, J.