Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCE 239548 & SCE 241373, Allen J. Preckel, Judge.
HUFFMAN, J.
A jury convicted Robbie Martin and Jefferson Udan Sison of first degree murder (Pen. Code, 187, subd. (a)), carjacking (§ 215, subd. (a)), and attempted carjacking (§§ 215, subd. (a)/664) involving three different incidents. The jury also found that Martin and Sison personally used a firearm during the commission of the carjacking (§§ 12022.5, subd. (a) & 12022.53, subd. (b)), and the special circumstance allegation of committing murder in the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)) to be true. In addition, the jury found Martin personally used a firearm (§ 12022.5, subd. (a)) and personally discharged a firearm and caused death to a person (§ 12022.53, subd. (d)) during the commission of the murder. With respect to Sison, the jury also found he intentionally and personally discharged a firearm during the commission of the attempted carjacking (§ 12022.53, subd. (c)), and he was a principal armed with a firearm during the commission of the murder (§ 12022, subd. (a)(1)).
All statutory references are to the Penal Code unless otherwise specified.
The court declared a mistrial on an attempted murder (§§ 187, subd. (a)/664) count associated with the attempted carjacking count after the jury announced it was deadlocked.
The trial court sentenced Martin to prison for life without the possibility of parole for first degree murder and 25 years to life for personally discharging a firearm during the murder. The court also imposed a determinate sentence of 15 years 10 months: five years for carjacking; 10 years for personally using a firearm during the carjacking; and 10 months for attempted carjacking.
The trial court sentenced Sison to prison for life without the possibility of parole for first degree murder. The court also imposed a determinate sentence of 28 years six months: one year eight months for carjacking; three years four months for personally using a firearm during the carjacking; two years six months for attempted carjacking; 20 years for intentionally and personally discharging a firearm during the attempted carjacking; and one year for having been vicariously armed during the murder.
Martin contends the trial court committed prejudicial instructional error by refusing to give an instruction on the reasons to distrust accomplice testimony and by telling the jury that if Sison was guilty of murder, he was guilty as an aider and abettor. Martin also argues that if these purported instructional errors are not individually prejudicial the aggregate impact on the jury was prejudicial. Additionally, Martin claims the evidence is insufficient to sustain the murder conviction and the robbery special circumstance finding. Sison joins in and adopts Martin's arguments that are pertinent to his appeal. (Cal. Rules of Court, rule 8.200 (a)(5).)
All rule references are to the California Rules of Court.
Sison contends the trial court erred by denying his motion to sever the murder count from the other three charged counts and by failing to sever his trial from the trial of codefendant Martin. Sison also contends two of the court's evidentiary rulings were erroneous: admitting evidence of Martin's description of the carjacking as an adoptive admission against Sison; and excluding testimony about the drug dealer activities of the murder victim. Sison additionally challenges the court's failure to instruct the jury that the prosecution's chief witness was an accomplice as a matter of law and the sufficiency of the evidence to support his murder conviction. Finally, Sison contends the cumulative effect of the errors denied him his due process right to a fair trial. Martin joins in and adopts Sison's arguments that are pertinent to his appeal. (Rule 8.200 (a)(5).)
FACTS
A. Prosecution Evidence
The Arnquist Carjacking (Count 1)
On December 28, 2003, at 10:45 p.m., Steven Arnquist was driving a black Honda Civic, equipped with aftermarket items, including a premium stereo system, 17-inch chrome rims and low profile tires, when he stopped at an automated teller machine in the parking lot of a shopping center in Spring Valley. Arnquist's fiancée, Taniesha Taylor, was a passenger in the vehicle. When Arnquist realized he had not signed the check he planned to deposit, he returned to his car and sat in the driver's seat to sign the check. The driver's side door was open. Taylor stood outside the car next to him.
Suddenly two men ran up to Arnquist and Taylor, who began screaming. One man held a gun in Arnquist's face and told him to hand over his wallet; Arnquist complied. The man ordered Arnquist to get up, but when Arnquist began to stand up, the man hit him with the gun and pushed him back into the car. The other man opened the passenger door and ordered Arnquist to pop open the trunk with the trunk release, give the car keys to the first man and get out of the car. Arnquist did what he was told to do. The second man then grabbed Taylor's hair, held a gun to her head, pulled her to the back of the car and ordered her to get in the trunk.
Virgilio Villegas, who had just left the grocery store in the shopping center, noticed a commotion in the parking lot and drove toward it. When he saw a woman on the ground, Villegas started honking the horn and flashing the headlights on the people near Arnquist's Honda. Upon hearing the horn, the man who was holding Taylor released her and said, "Let's get out of here," and entered the Honda on the passenger side. The first man drove away. Villegas telephoned 911 and drove Arnquist and Taylor to a sheriff substation nearby.
Arnquist said the man who first approached him was more husky than the other man. Arnquist described the assailants as two Asian men who were approximately five feet, eight inches to five feet, ten inches tall and weighed between 200 and 225 pounds. Taylor thought the men were either Filipino or Mexican. Both men wore hooded sweatshirts and masks. One of the men wore camouflage-type pants.
The following day, Martin, who worked as a security guard at the Sycuan casino told two of his coworkers, Curtis Kellas and Joseph De Benedetti, about a recent Spring Valley carjacking in which he and his partner held two unknown individuals at gunpoint and took their vehicle. Martin described how he loved the carjacking and described it from "start to finish," according to De Benedetti. Martin drew a street map of the shopping center. Sison glanced at the map and nodded his head. Martin said: " 'Oh, hey, I was talking about what we did the other night, this kind of stuff. You know what I mean?' " Sison responded, " 'Oh, yep, yep.' " According to De Benedetti, Sison did not seem surprised and displayed a "ha, ha, ha, hee, hee, hee, yep, that kind of attitude."
On December 30, sheriff deputies recovered Arnquist's car from a residential area in Spring Valley. The car no longer had the premium stereo system, wheels or rims. The axle was bent, and the car could not be driven properly.
In May 2004, Arnquist and Taylor were shown photographic lineups. Arnquist did not recognize any one on the first photo page and when he was asked to look again, he pointed to a picture of Martin and said he looked familiar and could have been one of the men involved. Arnquist could not identify Sison. Taylor was unable to identify either Martin or Sison from the photographic lineups. At trial in 2005, Arnquist could not identify either Martin or Sison.
The King Attempted Carjacking and Attempted Murder (Counts 2 & 3)
On the evening of March 4, 2004, Martin arranged a meeting on Sweetwater Lane with Benjamin King, from whom he was purchasing anabolic steroids. At about 9:15 p.m., King was sitting in his vehicle parked on the street with the motor running when he saw two men approaching from the rear. One man, whom King later identified as Martin, walked up to the passenger side of the vehicle and knocked on the window. King motioned for the man to get into the vehicle. The man stepped back, pulled a bandana over his face, opened the truck, stuck a gun in King's face and ordered King to get out of the car. At the same time, the other man, whom King later identified as Sison, opened the driver's side door and pistol whipped King. King released the emergency brake and floored the gas pedal. As the vehicle began to move, Martin, who was partially in the vehicle, fired a shot at King. The bullet hit the post behind King's head, but shrapnel struck King in the shoulder. Then Sison fired a shot at King, but missed. King quickly drove away.
King had never met Martin before. All of their discussions leading to the unconsummated sale had been on the telephone. Martin had been referred to King by his coworker De Benedetti. After the attempted carjacking, King left De Benedetti a voice mail message asking De Benedetti to not tell Martin anything about him. That night King did not contact law enforcement because he believed authorities would not do anything and because he did not want to get in trouble for selling steroids. The following day, King changed his mind and contacted authorities.
In late March, Sheriff Detective Douglas Akers received information from Sycuan Gaming about a carjacking that had occurred on December 28, 2003. Sycuan security put Akers in contact with Kellas and De Benedetti. Kellas gave Akers a pocket-sized digital recorder with a recording of portions of the December 29 conversation between him, De Benedetti and Martin. During his interviews with Kellas and De Benedetti, Akers also learned about the attempted carjacking and shooting of King.
Akers was unable to find a crime report of the attempted carjacking and shooting of King, but spoke to a sheriff deputy who had talked with King after she received a radio call to contact the reporting party of an attempted carjacking.
On March 24, Akers interviewed King, examined the vehicle King had been driving on March 4 and showed King two photographic lineups. King identified Sison in one of the photographic lineups. In the other, King initially said the photograph of Martin looked like the other man, but was thinner. Ultimately, King selected the photograph of another man in the lineup as the second assailant.
King identified Martin and Sison at the preliminary hearing and at trial.
On April 20, sheriff deputies arrested Martin and Sison. After advising Martin of his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights, Akers told him that he was a suspect in the Arnquist carjacking. At first, Martin denied any participation. Martin also denied knowing King. After Akers showed Martin cellular phone records showing he and King had numerous calls with each other, Martin said he was trying to buy steroids from King. After Akers played the recording of the conversation Martin had with Kellas and De Benedetti the previous December, Martin admitted he had carjacked Arnquist's vehicle.
After receiving his Miranda rights advisement, Sison denied knowing King. Akers then confronted Sison with a piece of paper from his car that had King's name and cellular phone number on it, and Sison admitted he knew King. When Akers played the recording of Martin telling Kellas and De Benedetti about the Arnquist carjacking, Sison denied participating in the crime and said that Martin was not referring to him in the recording.
The Luna Murder (Count 4)
On April 8, Francisco Luna and his girlfriend went out to dinner to celebrate his birthday. Luna owned a black Lexus with 20-inch Diablo wheel rims, a dashboard television that flipped up, a television on the passenger's visor and a television on the driver's visor. Luna dropped his girlfriend off at her home around 9:30 p.m. and said he was meeting someone. Luna had told his cousin that he was going to look at a gun he wanted to buy.
On April 9, a bicyclist on International Road in South San Diego saw shell casings, blood and drag marks on the road. The bicyclist followed the drag marks to a brush area and discovered a dead body underneath a piece of carpet. The body was on its back with the arms extended, indicating it had been dragged. The arrangement of the clothing on the body also indicated the body had been dragged. From a thumbprint on the body, San Diego police identified the victim as Luna.
It was later determined from the casings that the handgun that was used was .380 caliber.
The autopsy revealed the cause of death was multiple gunshot wounds. The first wound was a perforating gunshot wound to the back of Luna's head. The wound was a contact range wound; it was inflicted with the end of the gun barrel against the skin. This wound was fatal; the bullet separated the brain from the brain stem. The second wound was a perforating gunshot wound on the right side of Luna's head and would have been fatal as well. There were six other gunshot wounds in his left arm, upper chest area, lower chest and upper abdomen area, right buttock, right leg, and left forearm.
Police received their first solid lead from Jason McDaniel, who was a friend of Luna and Martin. McDaniel revealed that a couple days before Luna was killed, Martin had asked him about Luna. Martin wanted to know if Luna carried a gun and who might back up Luna if he got into trouble or ran into gang members. McDaniel said he had not thought much about Martin's questions at the time, but after Luna was murdered he immediately connected the conversation to Luna's murder. McDaniel also said that a few days after Luna's murder, Martin visited him and asked if he wanted to buy rims. The rims were the same ones as those on Luna's Lexus.
After interviewing McDaniel, homicide detective Jonathan Smith conducted a background check on Martin and learned that Martin had been employed at Sycuan casino and was in custody for a carjacking and shooting in Spring Valley.
On May 7, Smith and another detective interviewed Thomas Di Francesco, a slot machine attendant at Sycuan Casino who had become Martin's friend while they worked at the casino. Initially, Di Francesco denied knowing anything about a black Lexus and someone named Luna. When confronted with records showing numerous calls made between his phone and Martin's cellular phone on April 8, Di Francesco said he was asleep at home that night and did not know why Martin called him so many times. After the detectives told Di Francesco they did not believe him and emphasized the seriousness of the crime they were investigating, Di Francesco said he had had a conversation with Martin and had taken Martin to the location where the Lexus was found. Di Francesco showed the detectives where the Lexus was found.
Di Francesco agreed to go to police headquarters and repeated the story he had told the detectives. However, Di Francesco added that there was another person with Martin, whom he thought was named "Jeff." Di Francesco said "Jeff" arrived in the black Lexus, which had shiny rims. "Jeff" went to a liquor store and obtained a crate to put under the Lexus after the tires were removed. Di Francesco said Martin became frustrated with him because he did not how to "jack up" a car; Martin pushed Di Francesco out of the way to do it himself. The rims were placed in the back of Martin's car. Di Francesco said he had spoken with Sison but did not know him.
On June 9, Smith and another detective reinterviewed Di Francesco. Initially Di Francesco denied going to Martin's residence on the night Luna was killed and said he was not holding anything back. But later, after seeing cellular phone data, Di Francesco started crying and asked, " 'What if I witnessed something?' " Di Francesco confirmed he was there when Luna was killed, but said he did not know that it was going to happen. Di Francesco also said he had heard Martin describe the gun as a .380 caliber gun. Subsequently, Di Francesco showed the detectives where Luna was killed, where his truck and Luna's Lexus were parked, how he and the others walked down to the field, where each person was standing and where the firing began.
In October, Di Francesco was informed he would not be prosecuted for stripping Luna's car or disposing of the stolen property from the vehicle. Di Francesco testified at trial that he did not expect to be prosecuted.
At trial, Di Francesco was the prosecution's chief witness and testified as follows: Di Francesco telephoned Martin on the afternoon of April 8 to inquire about stereo equipment, which Martin was selling. During the conversation, Martin asked if Di Francesco knew anyone who wanted to buy a gun. Throughout the day, Martin and Di Francesco talked several more times, and Martin invited Di Francesco to come to his house around 11 p.m. Martin also instructed Di Francesco to say, " 'I forgot it,' " when he arrived. Di Francesco drove his Ford Ranger to Martin's residence, where Martin, Sison and Luna were standing outside. Martin asked, " 'Did you bring it?' " Di Francesco had forgotten Martin's earlier instruction and responded, " 'Bring what?' "
Martin introduced Di Francesco to Luna and they discussed Luna purchasing a gun from Martin. When Luna went to his car to get something, Sison pulled a gun from his waist band and handed it to Martin, who tucked the gun in his waistband. Sison said, " 'Here, you do it.' " When Luna came back to the group, he wanted to make sure the gun worked properly, and they decided to go somewhere to test fire the gun. Sison rode with Di Francesco in his Ford Ranger truck, and Martin and Luna left in Luna's Lexus, with Martin driving.
Di Francesco and Martin drove south on Highway 54, exited shortly before reaching the border and parked at the end of a dead-end street in a residential neighborhood. The foursome walked down stairs that led to an unpaved road along a river bed. After about 20 yards, Martin left the group and walked up an embankment. Then Sison walked into some bushes. Martin suddenly turned around, mumbled something and fired a gun at Luna. As Luna turned around to run, Martin shot him in the back. Luna began running and was begging Martin to stop. Martin chased Luna while continuing to fire shots. Sison came out of the bushes and also started chasing Luna. After the shooting stopped, it appeared that Martin and Sison were tugging at Luna's leg. Martin jogged back to where Di Francesco was standing, and, within a moment, Sison followed, but he was limping. Martin, Sison and Di Francesco returned to the vehicles. Martin drove with Di Francesco and told Sison to drive the Lexus. The Lexus was driven to "The Spot," a street in a residential area of Spring Valley where cars are frequently stripped. They decided not to strip the car at that time, and Martin told Di Francesco to go home.
Priscilla Flores, who lived about four houses from the field, testified she was awakened between 12:20 a.m. and 12:50 a.m. by seven or eight gunshots.
Between 1:30 a.m. and 2:00 a.m. on April 9, Martin telephoned Saroun Morn, a coworker at Sycuan casino, and asked if Morn had a garage where he could store a Lexus. Morn heard a voice in the background, which he thought was Sison's voice, but was not sure. Morn told Martin he did not know of any place to store the Lexus.
Later in the morning, Di Francesco met with Martin and Sison and went to an apartment complex in El Cajon, where Sison parked the Lexus in an alley. Di Francesco watched as Martin and Sison, both of whom were wearing gloves, stripped down the Lexus. Martin and Sison removed the rims and put them in the back of Di Francesco's truck. Other items from the Lexus were put in Martin's vehicle. The stripped Lexus was left in the alley.
Sometime in April, Martin tried to sell 20-inch Diablo chrome rims to some of his coworkers in the employee parking lot of the casino. Martin said the rims were from a Lexus.
The prosecution also presented Martin's cellular phone records, where indicated he drove from Spring Valley to South San Diego on two separate occasions between the late night hours of April 8 and the early morning hours of April 9. The records also showed, among other things, a large number of calls between Martin and Sison, and Martin and Di Francesco during those hours.
B. Defense Evidence
Martin's Defense
Martin admitted he carjacked Arnquist's car on December 28, 2003. Although he and Sison initially believed the car was unattended and only intended to steal the car, they decided to take the car in any event after they saw Arnquist.
Martin also admitted that he had made plans to buy steroids from King on March 4, 2004, but said he sent Sison and Di Francesco to meet King and make the purchase. Martin said he did so because his girlfriend was expecting him that night. Martin testified he spent the evening with his girlfriend and did not see Sison or Di Francesco until the next day. Martin asked Sison, whom he had given $200 for the steroid purchase, if he had the steroids. According to Martin, Sison told him that he and Di Francesco had tried to "jack" the car, but they had "fucked" up. Martin's girlfriend testified that he had spent the evening with her; she was sure of that because of an entry in her journal.
Martin denied he had anything to do with Luna's murder on April 8. Martin testified as follows: Luna wanted to buy a gun, and Martin knew Di Francesco had a gun for sale. Martin arranged to be the "middle man" in the gun sale with all three meeting at Martin's residence that evening. Luna and Di Francesco arrived shortly before 9:30 p.m.; Sison, who had brought some stolen radios for Martin to sell, was already there. Di Francesco pulled out his gun; Luna wanted to test fire it because something was wrong with the clip. After suggesting Luna go someplace else to test the gun, Martin left to try to sell the radios. Martin assumed Sison left as well. Martin was informed by telephone calls that Di Francesco and Luna could not find a location to test fire the gun and suggested that Di Francesco "hook up" with Sison. Sison later telephoned Martin and suggested he meet them at a baseball field near the border, but Martin could not find the location. Martin decided to go home and telephoned Di Francesco at 12:44 a.m. to find out whether Di Francesco had sold the gun to Luna. After telling Martin that Luna did not buy the gun, Di Francesco asked Martin's help in finding a garage to house a car he had just carjacked. Martin met Di Francesco and Sison in a Spring Valley shopping center, and then the three of them left the Lexus at "the Spot" for the rest of the night. The next day, Martin, Sison and Di Francesco stripped the Lexus in an alley near Di Francesco's residence. Martin did not know the Lexus was Luna's car until a couple of days later, when McDaniel told him that Luna had been shot.
Martin also presented several character witnesses who testified that they did not believe Martin was a violent person.
Sison's Defense
Sison denied participating in the Arnquist carjacking on December 28, 2003. Sison testified that on that evening, long-time friends had visited him and brought a gift for Sison's daughter. Sison said Martin lied when he testified he talked to Sison about stripping Arnquist's car the day after carjacking. Sison said Martin bragged about carjackings all the time. Sison said if he had heard Martin saying anything about his involvement in the crimes he would have responded by saying "bullshit" and "[h]e's a liar." According to Sison, at the beginning of 2004, he and De Benedetti were competing for a promotion and had a confrontation that almost escalated into a fight.
Sison denied he had anything to do with the attempted carjacking of King on March 4, 2004. Sison said Martin had given him King's telephone number because he was interested in working out and Martin had suggested he use steroids. Sison said he was with his girlfriend in their apartment on the evening of March 4.
Sison denied having anything to do with Luna or Luna's car. Sison testified that he spent the evening of April 8 with his girlfriend in their apartment and they watched wrestling on television. When the wrestling program ended, Sison went outside to smoke a cigarette with his neighbor, Sandra Washington. Washington testified that she saw Sison on his porch smoking a cigarette between 10:00 p.m. and 10:30 p.m. on April 8.
Sison also presented witnesses who testified that Sison was a trustworthy person and it would have been out of character for him to have committed the charged offenses.
DISCUSSION
I
MARTIN'S APPEAL
A. Refusal of "Reasons to Distrust" Instruction
Martin contends the trial court erred by refusing to give his specially crafted instruction outlining reasons to distrust the testimony of an accomplice — namely Di Francesco. Sison specifically joined in Martin's request for the instruction. On appeal, Sison joins in this contention. (Rule 8.200(a)(5).) The contention is without merit.
The law has long recognized that an accomplice has an incentive to lessen his or her guilt before the jury and to enhance the guilt of others. (See People v. Coffey (1911) 161 Cal. 433, 438.) "[I]t was, of course, recognized that evidence of an accomplice, coming from a tainted source, the witness being . . . a man usually testifying in the hope of favor or the expectation of immunity, was not entitled to the same consideration as the evidence of a clean man, free from infamy." (Ibid.)
A trial court has a sua sponte obligation to give instructions concerning accomplice testimony whenever there is testimony sufficient to warrant the conclusion that a witness implicating a defendant was an accomplice. (People v. Zapien (1993) 4 Cal.4th 929, 982.) For example, section 1111 prohibits conviction upon the testimony of an accomplice unless it is corroborated by evidence that tends to connect a defendant with the commission of the crime. The trial court instructed the jury along this line by giving CALJIC No. 3.11. Further, the trial court instructed the jury with CALJIC No. 3.18, which directs the jury to view an accomplice's testimony that tends to incriminate the defendant with caution. (See People v. Guiuan (1998) 18 Cal.4th 558, 569 (Guiuan).
CALJIC No. 3.18 reads: "To the extent that an accomplice gives testimony that tends to incriminate [the] defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case."
Relying on Justice Kennard's concurring opinion in Guiuan, supra, 18 Cal.4th at pages 570 to 578, Martin argues that CALJIC No. 3.18 was insufficient in this case because it failed to explain why Di Francesco's accomplice testimony should be viewed with caution. In Guiuan, Justice Kennard suggested that jurors would be better able to apply CALJIC No. 3.18 if they knew the reasons behind it:
"Unlike the majority, I would advise jurors of the reasons why accomplice testimony should be viewed skeptically, because jurors will understand the warning better, and will be less apt to give accomplice testimony either more or less weight than it deserves, if they understand the reasons why accomplice testimony may be inherently suspect." (Guiuan, supra, at pp. 570-571 (conc. opn. of Kennard, J.)
Justice Kennard observed that the testimony of accomplices should be viewed skeptically because (1) accomplices have a motive to aid the prosecution in the hope they will receive immunity or leniency for their own crime(s), (2) by virtue of their participation in the charged crime, accomplices usually are not "persons of integrity," (3) accomplices tend to minimize their role in the crime, making it appear relatively insignificant, and (4) accomplices, with their firsthand knowledge of the crime are better equipped to tell plausible lies. (Id. at pp. 571-575.)
Acknowledging that the majority did not adopt Justice Kennard's proposed language for purposes of sua sponte instructions and her concurrence is not binding (People v. Amadio (1971) 22 Cal.App.3d 7, 14), Martin argues nonetheless that giving an instruction discussing the reasons to distrust accomplice testimony does not conflict with the majority holding in Guiuan. Because jurors may not fully understand the intensity of the pressure on an accomplice to lie, Martin asserts his proposed instruction is merely an expansion of CALJIC No. 3.18, and is particularly called for under the facts of the case. Martin emphasizes Di Francesco's motive to lie in urging that an instruction informing the jury that an accomplice's testimony "may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution's case by granting him immunity or leniency," should have been given.
Martin's proposed instruction read in full: "In deciding whether to believe testimony given by Thomas Di Francesco [r]egarding [c]ount 4, you should use greater care and caution than you do when deciding whether to believe testimony given by an ordinary witness. Because Mr. Di Francesco is also subject to prosecution for the same offense, his testimony may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution's case by granting him immunity or leniency. For this reason, you should view with distrust Mr. Di Francesco's testimony that supports the prosecution's case. Whether or not his testimony supports the prosecution's case, you should bear in mind his interest in minimizing the seriousness of the crime and the significance of his own role in its commission, the fact that his participation in the crime may show him to be an untrustworthy person, and his particular ability, because of inside knowledge about the details of the crime, to construct plausible falsehoods about it. In giving you this warning about the testimony of Mr. Di Francesco, I do not mean to suggest that you must or should disbelieve his testimony that you heard at this trial. Rather, you should give the testimony of Mr. Di Francesco whatever weight you decide it deserves after considering all the evidence in the case."
Martin is mistaken. His proposed instruction is not an expansion of CALJIC No. 3.18; the majority in Guiuan rejected the use of the term "distrust," and specifically endorsed the language of CALJIC No. 3.18 as adequately covering the issue of accomplice testimony. (Guiuan, supra, 18 Cal.4th at p. 569.) The majority opinion effectively rejected the alternate instruction proposed in Justice Kennard's concurrence.
Although Martin acknowledges that a court is not compelled to give an instruction discussing the reasons a jury should distrust an accomplice's testimony sua sponte, he urges that it should be given when the facts of the case warrant it and the defense expressly requests it. Under this argument, Martin's proposed instruction is akin to a requested pinpoint instruction, which relates particular facts to a legal issue in the case or pinpoints the crux of the defendant's case. (See People v. Saille (1991) 54 Cal.3d 1103, 1119.) However, " 'a trial court need not give a pinpoint instruction if it . . . merely duplicates other instructions . . . .' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) The trial court is under no obligation to instruct the jury in a manner requested by the defendant when instructions given adequately cover the issue. (People v. Cox (1991) 53 Cal.3d 618, 674.) Our Supreme Court has found that CALJIC No. 3.18 "casts doubt on the veracity of an accomplice who has an obvious motive to testify falsely, while reducing the burden on the trial court." (Guiuan, supra, 18 Cal.4th at p. 569.) The court did not abuse its discretion in rejecting Martin's proposed instruction. (People v. Kraft (2000) 23 Cal.4th 978, 1063.) We therefore conclude that the trial court's failure to give the requested instruction was not error.
B. Instruction that Sison Was Guilty of Murder
Only if He Was an Aider and Abettor
Martin contends the trial court erred by instructing the jury pursuant to CALJIC No. 3.02 as follows:
"One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
"In order to find the defendant JEFFERSON SISON guilty of the crime of Murder, as charged in Count Four, you must be satisfied beyond a reasonable doubt:
"1. That the crime or crimes of Robbery . . . or Unlawful Taking Of A Vehicle . . . was/were committed;
"2. That the defendant JEFFERSON SISON aided and abetted that crime or those crimes.
"3. That a co-principal in that crime committed the crime of Murder, and
"4. The crime of Murder was a natural and probable consequence of the commission of the crimes of Robbery and/or Unlawful Taking Of A Vehicle.
"In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen.
"You are not required to unanimously agree as to which originally contemplated crime the defendant JEFFERSON SISON aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that he aided and abetted the commission of an identified and defined target crime and that the crime of Murder was a natural and probable consequence of the commission of that target crime."
Martin contends the instruction was tantamount to a directed verdict, effectively nullified his entire defense, and placed the court's imprimatur on Di Francesco's testimony. We disagree and find no error.
Although Martin did not object to this instruction below, we nonetheless reach the substantive merit of his arguments. (§ 1259.)
A jury instruction that lessens the prosecution of its burden of proving each element of the crime beyond a reasonable doubt violates the defendant's due process rights. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278; People v. Flood (1998) 18 Cal.4th 470, 480-481.) For example, in People v. Figueroa (1986) 41 Cal.3d 714, 717-718, the defendant was charged with sale of unqualified securities, and the trial court instructed the jury that the promissory notes at issue were securities. The California Supreme Court held that although the definition of a security is a question of law for the court to determine, whether a particular instrument satisfies the definition is a factual question for the jury. (Id. at pp. 733-734.) The high court concluded the instruction was tantamount to a directed verdict against the defense and reversed. (Id. at p. 724.) Another example is United States v. Gaudin (1995) 515 U.S. 506, in which the defendant was prosecuted for making material false statements on federal loan documents and the trial court instructed the jury that the allegedly false statements were material. The United States Supreme Court held this instruction denied the defendant his constitutional right to have the jury determine whether the prosecution had established each and every element of the charged crime. (Id. at p. 510.)
That type of error did not occur here. Notwithstanding Martin's appellate arguments, telling the jury that Sison's murder culpability depended on an aider and abettor theory did not effectively tell the jury that Martin killed Luna or that it must find Martin was the killer. "The instruction could not reasonably be understood as precluding rejection of [Di Francesco's] testimony — including rejection based on a conclusion that in fact [Di Francesco] was the killer." (People v. Heishman (1988) 45 Cal.3d 147, 162-163.)
Moreover, the court did not instruct the jury that an element of the crime of murder had been established or suggest to the jury it need not find any of the requisite elements. Instead, the court explained that under the facts presented by the parties Sison was not the shooter who killed Luna. Di Francesco testified for the prosecution that Martin fatally shot Luna. Martin testified that he was not at the murder scene, but Di Francesco and Sison were. Sison denied he was at the murder scene. Also, there was no evidence presented that Sison was in possession of a gun after he left Martin's residence. Further, the instruction reflected the amended consolidated information, which charged both Martin and Sison with murder and alleged that Martin personally discharged the firearm causing Luna's death. The amended consolidated information did not allege Sison was personally armed with a firearm nor that he personally discharged a firearm in connection with Luna's murder.
Sison was prosecuted for Luna's murder as an aider and abettor. A trial court is obligated to instruct the jury "sua sponte on general principles which are closely and openly connected with the facts before the court." (People v. Holt (1997) 15 Cal.4th 619, 688 (Holt).) The court properly instructed the jury pursuant to CALJIC No. 3.02.
We must construe instructions in a common sense manner and as a whole. (Holt, supra, 15 Cal.4th at p. 644.) CALJIC No. 1.01 instructed the jury not to single out, as Martin has done, "any particular sentence or any individual point or instruction and ignore the others," but instead to "[c]onsider the instructions as a whole and each in light of all the others." We presume the jury followed this instruction. (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) Martin suggests the challenged instruction deprived him of the presumption of innocence. This is not so. No reasonable juror would have interpreted the instruction in this manner in view of other instructions given, particularly the presumption of innocence in CALJIC No. 2.90. (People v. Hardy (1992) 2 Cal.4th 86, 151-152.)
Martin relies on two out-of-state cases to support his contention. Both are distinguishable. Martin's reliance on People v. Soto (1969) 276 Cal.App.2d 81, 87, in which the trial court did not instruct on the use of excessive force by a peace officer, is also misplaced.
Martin contends the cumulative effect of the two purported instructional errors discussed above warrants reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844-847.) However, we have found the court did not err in either refusing to give the reasons-to-distrust instruction or in giving CALJIC No. 3.02. Thus, we find no cumulative error.
C. Sufficiency of Evidence that Luna's Car Key
Taken from His Immediate Presence
Martin argues the jury could have made its true finding on the robbery special circumstance allegation on the premise that he took Luna's car key from Luna's immediate presence when, after Luna was killed, he and Sison went through Luna's pockets. Therefore, Martin contends his murder conviction and special circumstance finding must be reversed because there was insufficient evidence that Luna's car key was in his pocket.
The problem with this contention is that it is based on a faulty premise — one that is without factual support and is entirely speculative. "The . . . premise was based on sheer speculation. The record contains no evidence whatsoever" that Martin and/or Sison took Luna's keys from his pocket after Luna was killed. (People v. Clark (1992) 3 Cal.4th 41, 134.) The evidence established that Martin already had the keys to Luna's Lexus because, as Martin concedes, he drove the vehicle — with Luna as a passenger — when they left Martin's residence. Further, when asked if Martin and Sison did anything to Luna's body after he was dead, Di Francesco testified, "I couldn't really tell. It was really dark. When I was crouching down and I looked over for a split second, it looked like they were maybe tugging at his legs or his shoes or something like that."(2 RT 414-415)! It was Detective Smith who suggested that Martin and/or Sison went through Luna's pockets, but the testimony was so vague that it did not constitute solid, credible evidence. Rather, it was mere conjecture. Smith testified that Di Francesco had told him at the homicide scene that he "couldn't see for sure, but he thought something was happening . . . . And then he told me that they either — he said it was dark, but he said it appeared that they were doing something like tugging on his legs, going through his pockets, or something like that." Given the fact that Martin already had the key to Luna's Lexus, and Di Francesco's testimony, no reasonable juror would have concluded on the basis of Smith's vague testimony that Martin and/or Sison went through Luna's pockets to get the key to the Lexus.
Since the premise of Martin's contention cannot stand, his argument fails as well.
D. Sufficiency of Evidence that Car Was Taken from Luna's "Immediate Presence"
Martin also attacks the robbery special circumstance, contending there was insufficient evidence that Luna's Lexus was taken from his "immediate presence" given the distance between the location he was killed and the location that the Lexus had been parked. The contention is without merit because of California Supreme Court precedent, as Martin implicitly concedes when he states he is presenting the argument to us "to preserve it for later review."
Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.)
The case at issue is People v. Webster (1991) 54 Cal.3d 411 (Webster), in which the Supreme Court held:
"One commits robbery when, with intent to rob, he uses peaceful means to move the victim away from a place where the victim could physically protect the property, then employs force or fear upon the victim in order to make good the theft or escape. The act of 'taking' begins when the separation of the victim from his or her property occurs, and it continues through the forcible consummation." (Id. at pp. 441-442.)
On the basis of Webster, supra, 54 Cal.3d 411, the trial court allowed the prosecution to present its robbery theory — regardless of the court's initial doubts about the theory — because it was bound to follow Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We too are so bound. (Ibid.)
Here, there was ample evidence under Webster, supra, 54 Cal.3d 411, to support the jury's finding of robbery, including the element of taking the Lexus from Luna's "immediate presence." Martin, in concert with Sison, convinced Luna to allow Martin to drive the Lexus to South San Diego, leave it parked on International Road and walk with them to a dark secluded field nearby, where Luna supposedly could test fire the gun that Martin was selling him. The "taking" of the Lexus took place when the car was parked on International Road and the foursome started walking to the field and continued through the killing of Luna. (Id. at p. 442.)
II
SISON'S APPEAL
A. Joinder of Car Jacking and Attempted Murder
Information with Murder Information
Sison contends the trial court erred by consolidating the initial information charging him and Martin with the Arnquist carjacking, the King carjacking and the attempted murder of King (Case No. SCE 239548) with the information charging Sison and Martin with the murder of Luna (Case No. SCE 241373). The contention is without merit.
Under section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
Sison concedes that the two cases were eligible for joinder as offenses of the same class. (§ 954.) Murder, attempted murder and carjacking are offenses of the same class because each is an assaultive crime against the person. (See People v. Miller (1990 50 Cal.3d 954, 987.) However, Sison points out section 954 also gives the court discretion to sever otherwise joinable counts "in the interests of justice." (§ 954.)
We review an order consolidating charges for trial under a deferential abuse of discretion standard. (People v. Osband (1996) 13 Cal.4th 622, 666.) "A court abuses its discretion when its ruling " ' falls outside the bounds of reason.' " (Ibid.) We find the court's ruling on consolidation was reasonable and well within the court's discretion.
If the statutory requirements for joinder are met, the defendant must clearly show prejudice to establish the court abused its discretion. (People v. Stitely (2005) 35 Cal.4th 514, 531. (Stitely).) An abuse of discretion may be shown "where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]" (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 (Sandoval), distinguished on another point in People v. Lewis (2001) 26 Cal.4th 334, 390.) Generally, if the evidence on each of the joined charges is cross-admissible, any inference of prejudice is dispelled. (Stitely, supra, at pp. 531-532.)
On this record, there is no showing of prejudice to justify severing the two cases. None of the criteria used to demonstrate prejudice weighed in favor of the defense objection to consolidation.
"Offenses committed at different times and places against different victims are . . . 'connected together in their commission' when there is a 'common element of substantial importance' among them. [Citations.]" (People v. Matson (1974) 13 Cal.3d 35, 39.) All three incidents — the Arnquist carjacking, the attempted King carjacking and the murder of Luna — stemmed from Martin's and Sison's penchant for stealing vehicles while armed with firearms and their willingness to use whatever force was necessary to obtain the vehicles. If separate trials were held, evidence of the Arnquist carjacking and the attempted King carjacking would be admissible to show that Martin and Sison committed the carjacking and murder of Luna as part of a common scheme or plan, which is relevant to the element of intent. (Evid. Code, § 1101, subd. (b).) As the California Supreme Court observed in People v. Ewoldt (1994) 7 Cal.4th 380, 402, "The least degree of similarity . . . is required in order to prove intent. '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.' " (Quoting 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 304, p. 241, italics omitted.) "We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance.' " (People v. Robbins (1988) 45 Cal.3d 867, 879, quoting People v. Thompson (1980) 27 Cal.3d 303, 319.)
Further, to establish the existence of a common design or plan, a greater degree of similarity is required to prove intent, but still a lesser degree than to establish identity. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402, 403.) To demonstrate the existence of a common plan, "the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]" (Id. at p. 403.)
Evidence of the Arnquist carjacking and the attempted King carjacking would have been cross-admissible in a trial involving solely the murder charge because all three incidents were sufficiently similar to support an inference that Martin and Sison acted according to a plan in committing all the crimes. The crimes in all three incidents do not have to be committed in the exact same manner to allow cross-admissibility. (People v. Kraft, supra, 23 Cal.4th at pp. 1030-1032.) Furthermore, it is sufficient that the Arnquist carjacking and the attempted King carjacking would be admissible in the murder case; complete or two-way cross-admissibility is not required. (See People v. Cunningham (2001) 25 Cal.4th 926, 985-986; People v. Cummings (1993) 4 Cal.4th 1233, 1284.)
Consolidation of the two informations was not a situation in which the jury would likely be inflamed against the defendants any more than if the cases were tried separately. All of the charges were violent and serious crimes, which were similarly repugnant. In the Arnquist carjacking, Sison was attempting to put Taylor in the trunk of the car when he was interrupted by the Good Samaritan. But for this intervention, Taylor's fate could have been as bad as Luna's. In the attempted carjacking of King, Martin and Sison fired shots at him at close range and were it not for King's quick reaction, he, too, could have been murdered. Luna's murder was not likely to inflame the jury any more than any of the other charges.
The Arnquist and King carjacking cases were not weak cases; nor was the case involving Luna's murder. Hence, there was no spillover effect of a weak case being joined with a strong case or with another 'weak' case, to alter the outcome of some or all of the charges. Finally, the prosecution, on its own volition, decided not to seek the death penalty for Luna's murder; therefore, joinder of the cases did not turn the matter into a capital case.
Although on this record we cannot find the trial court abused its discretion in consolidating the cases over defense objection, "[b]ecause the issue is raised on appeal following trial [and Sison asserts he was denied a fair trial by the improper joinder], we must also consider whether, 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.' " (Sandoval, supra, 4 Cal.4th at p. 174.) Sison relies on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 to argue that his trial was fundamentally unfair because his actions in the Arnquist carjacking with respect to Taylor likely inflamed the jury so much that it convicted him of Luna's murder, in which his role was relatively small. Sison has not demonstrated any actual prejudice from an alleged "spillover" effect of count 1, resulting from the joinder of the two informations. Rather, Sison mischaracterizes the record, ignoring that his role in the murder of Luna was substantial even though he was not the shooter. Sison supplied the gun to Martin, joined Martin in chasing Luna after Martin started shooting and helped Martin drag Luna's body and place a carpet over it. Sison also drove Luna's Lexus away from the murder scene. Contrary to Sison's assertion, he played an integral role in the murder of Luna and there is no indication his murder conviction was affected by a spillover effect of the Arnquist carjacking. Further because the jury was unable to reach a verdict on one of the counts (attempted murder of King), the record reflects the jury necessarily compartmentalized the evidence and considered each count separately. We conclude Sison has failed to show that the joinder of the two cases deprived him of a fair trial. (Sandoval, supra, at p. 174.)
B. Failure to Sever Sison's Trial from Martin's Trial
Before trial, Sison sought to have his trial severed from Martin's trial based on two grounds: (1) Aranda/Bruton (People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton)) issues would arise in a joint trial because of Martin's postarrest statements; and (2) since Sison was unaware of Martin's defense, he did not know if Martin was going to implicate him as the sole perpetrator of the murder. Sison contends the trial court erred by rejecting his motion to sever his case from Martin's case, or alternatively, to have the case tried by separate juries. The contention iswithout merit.
Under section 1098, two or more defendants charged with any public offense must be tried together unless the court orders separate trials. (See People v. Boyde (1988) 46 Cal.3d 212, 232 [1egislative preference for joinder].) Joint trials are favored because they promote judicial economy and efficiency and avoid inconsistent verdicts. (Zafiro v. United States (1993) 506 U.S. 534, 539 (Zafiro).) Codefendants, who are charged with having committed "common crimes involving common events and victims," present a "classic" case for a joint trial. (People v. Keenan (1988) 46 Cal.3d 478, 499-500.)
Despite the legislative preference for joint trials, separate trials are permitted in the court's discretion. A separate trial may be ordered "in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." (People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted; see also Zafiro, supra, 506 U.S. at pp. 539-540 [severance under Federal Rules of Criminal Procedure should be granted when there is a serious risk that a joint trial would compromise one of the defendants' rights, as where evidence that would be available to a defendant if tried alone is unavailable to him in the joint trial].)
In Aranda, supra, 63 Cal.2d at page 526, our Supreme Court held that the admission of a nontestifying codefendant's out-of-court confession, which inculpates the defendant, is not rendered harmless by a jury instruction that the evidence should not be considered against him. Further, the Aranda court stated that if the defendants are tried together, either the statement must be redacted to remove direct and indirect identification of the defendant, or it must be excluded altogether. (Id. at pp. 530-531.)
The Aranda court also stated: "When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible." (Aranda, supra, 63 Cal.2d at pp. 530-531.)
Five years later, the United States Supreme Court in Bruton, supra, 391 U.S. at pages 135 to 137, held that introduction of an incriminating extrajudicial statement by a nontestifying codefendant violates the defendant's Sixth Amendment right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant's guilt or innocence. The rationale, the court explained, is that jurors cannot be expected to ignore the statements of one defendant that are "powerfully incriminating" as to another defendant. (Id. at p. 135.)
In recognition of the passage of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), the California Supreme Court has stated that the rule of Aranda was abrogated to the extent it required exclusion of relevant evidence that need not be excluded under federal constitutional law. (People v. Fletcher (1996) 13 Cal.4th 451, 464-465; see also People v. Boyd (1990) 222 Cal.App.3d 541, 561-563 [following Prop. 8, California law is coextensive with federal rule requiring exclusion of codefendant's extrajudicial statements incriminating defendant only when declarant does not testify at trial].)
We review the denial of a motion to sever for abuse of discretion. (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on another point in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.) We determine whether a court has abused its discretion by looking at the facts at the time the motion was heard. (People v. Pinholster (1992) 1 Cal.4th 865, 932.) A court abuses its discretion when its ruling " 'falls outside the bounds of reason.' " (Osband, supra, 13 Cal.4th at p. 666.)
In response to Sison's motion to sever, the prosecutor said he would not present at trial Martin's statements that were the basis of Sison's Aranda/Bruton argument. Rather, the prosecutor said, he would present only some of Martin's postarrest admissions, specifically those which implicated only Martin and no one else; he would not present Martin's evasive declarations implicating Sison, including "Martin's declaration to Di Francesco . . . that Sison shot Luna in the head." The prosecutor added that his representations were made on the assumption that Martin would not be testifying in his own defense, and "all bets are off and all of his statements are fair game for cross-examination."
At the May 23, 2005, hearing on Sison's severance motion, the trial court announced its tentative decision was to deny the motion based on the prosecution's representations that any statement violating Aranda/Bruton would not be presented in the prosecution's case-in-chief. Sison's counsel replied that there was no need for severance if the Aranda/Bruton issue was removed. Sison's counsel said he wanted to ensure that the parties and the court were "on the same page." The prosecutor assured the court that he was. Although the prosecutor reiterated his commitment to avoiding the Aranda/Bruton issue, he also noted there were two statements by Martin that possibly were admissible as adoptive admissions by Sison and that during the course of the trial, the court would have to rule on their admissibility. Sison's counsel indicated he understood the situation as presented by the prosecutor and the court, and agreed. The court denied the motion for severance, subject to reconsideration.
Under these circumstances, the trial court properly denied Sison's severance motion. The parties had agreed that those statements by Martin that would raise Aranda/Bruton issues were not to be introduced, eliminating that problem.
Further, the court had no way of knowing at that time whether Martin's defense would be antagonistic to Sison's defense. In any event, " '[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.' " (People v. Hard, supra, 2 Cal.4th at p. 168.) As our Supreme Court has noted, "If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' " (Ibid.) Severance based on conflicting defenses is warranted only when the conflict is so prejudicial that the defenses cannot be reconciled and the jury will unjustifiably infer that this conflict alone shows both defendants are guilty. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.) "When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do no compel severance." (Ibid.)
The trial court did not abuse its discretion in denying pretrial Sison's severance motion.
C. Did the Joint Trial Result in Denial of a Fair Trial for Sison?
Where a motion for severance is denied, "the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law." (People v. Turner, supra, 37 Cal.3d at p. 313; accord, Zafiro, supra, 506 U.S. at p. 539.) We look "to the evidence actually introduced at trial" in making this determination. (People v. Bean (1988) 46 Cal.3d 919, 940.) We are also mindful that reversal of a conviction achieved at a joint trial should not occur "in the absence of a reasonable probability that the defendant would have obtained a more favorable result at a separate trial." (People v. Massie, supra, 66 Cal.2d at p. 922.)
Under such a test, we conclude Sison's conviction for the Arnquist carjacking cannot stand because of the prejudicial impact of evidence stemming from the joint trial with respect to those counts. However, Sison's convictions for the attempted carjacking of King and for the murder of Luna do not warrant reversal because of the joint trial; it is not reasonably probable that Sison would have achieved a more favorable result had he been tried for these two crimes separately from Martin.
In the Arnquist carjacking, the evidence was overwhelming against Martin. Martin was forced to confess to the crime to sheriff deputies who had a copy of Kellas's tape recording of Martin boasting about the carjacking the day after it had occurred. Further, at trial, Martin testified that he, along with Sison, carjacked Arnquist's vehicle. If this evidence was not introduced, the case against Sison was weak. Any victim/witness identification evidence against Sison was minimal at most. Although De Benedetti and, to a lesser extent, Kellas effectively testified that Sison adopted Martin's boasting about the carjacking, we cannot say this evidence, by itself, would have resulted in Sison's conviction on the Arnquist carjacking count. Sison vehemently denied he had adopted Martin's prearrest statements about the carjacking and presented evidence that he and De Benedetti were at odds with each other. We find Sison was denied a fair trial on this count because of Martin's confession and testimony implicating himself and Sison.
The prosecution presented a much stronger case against Sison on the attempted carjacking count involving King than it did on the Arnquist carjacking count. King had no trouble identifying Sison as one of his assailants on the night of March 4, 2004. King's identification of Sison was firm and consistent; King picked Sison out of a photo lineup and identified him at both the preliminary hearing and at trial. In addition, a piece of paper with King's telephone number was found in Sison's vehicle. Sison offered inconsistent explanations for having King's telephone number. Given this damaging evidence, we conclude Sison would have received the same result — namely, a conviction for the attempted carjacking of King — if he was tried separately from Martin.
As to the murder count, the evidence of Sison's guilt as an aider and abettor was overwhelming by itself and substantially outweighed any prejudicial effect of being tried jointly with Martin. Di Francesco testified that Sison gave Martin the murder weapon and told him, "Here, you do it." This evidence showed that Martin and Sison had a plan. Further, Di Francesco testified that once Martin started shooting he ran after Luna, and Sison joined the chase. After Luna was killed, his body was dragged to an area of high grass and covered with a roll of carpet; Di Francesco testified that Sison tugged at Luna's legs or shoes. Sison also drove Luna's Lexus away from the murder scene. It is telling that despite extensive and able cross-examination by both Martin's and Sison's attorneys, the jury believed Di Francesco.
Additionally, there was testimony that Sison attempted to create an alibi through his then girlfriend and asked her to get rid of stolen items that were at his mother's house, telling her that he did not want those items to link him to the charged offenses. This evidence showed a consciousness of guilt, which the jury was free to consider.
Given this evidence against Sison, we are convinced he would have received the same result on the murder count if he was tried separately from Martin.
D. Sison's Adoptive Admission of Martin's Description of Carjacking to Coworkers
Sison contends the trial court erroneously admitted evidence of his assent to Martin's description of the Arnquist carjacking to coworkers as an adoptive admission. The contention is without merit.
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221.) An adoptive admission requires certain foundational facts: the defendant must understand the nature of the accusatory statement; and its circumstances must permit and normally call for a response. If those foundational facts exist, the accusatory statement is admissible for the purpose of interpreting the defendant's response, and any response by the defendant adopting the statement as true is admissible as an admission. (People v. Combs (2004) 34 Cal.4th 821, 843; People v. Riel (2000) 22 Cal.4th 1153, 1189.)
"For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential." (People v. Fauber (1992) 2 Cal.4th 792, 852.) "When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence." (Estate of Neilson (1962) 57 Cal.2d 733, 746; People v. Riel, supra, 22 Cal.4th at p. 1189.) "To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide." (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
As with other rulings on the admission of evidence, we will uphold the admission of a statement as an adoptive admission unless the trial court has abused its discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725.) The court did not abuse its discretion here.
There was sufficient foundation for the court to permit the jury to consider, as an adoptive admission against Sison, De Benedetti's and Kellas's testimony about Martin's description of the Arnquist carjacking. Martin's statements constituted an admission by him that he and a partner had carjacked a car. When Sison walked up to the trio, nodded affirmatively after looking at the map Martin had drawn, and answered affirmatively after Martin made his "what we did the other night" remark, Sison's actions amounted to an adoptive admission that he was Martin's partner. Sison's actions supported the inference that he heard and understood the accusatory statements and chose to adopt them, thereby acknowledging his participation. This evidence "was admissible as an adoptive admission [because] . . . the circumstances called for a denial or protest if the statement was inaccurate, [and] nothing prevented him from making [such] a response . . . ." (People v. Jurado (2006) 38 Cal.4th 72, 116-117.) Under these circumstances, the jury could properly view Sison's response as adopting Martin's statement.
Furthermore, the jury was not directed to draw an inference of guilt but rather was correctly instructed, pursuant to CALJIC No. 2.71.5, that evidence of Sison's response "may be considered against him as indicating an admission that the accusation was true." (See People v. Medina (1990) 51 Cal.3d 870, 891.)
The jury was instructed as follows: "If you should find from the evidence that there was an occasion when a defendant — [¶] (1) under conditions which reasonably afforded him an opportunity to reply; [¶] (2) failed to make a denial or made false, evasive or contradictory statements, in the face of an accusation, expressed directly to him or in his presence, charging him with a crime for which this defendant now is on trial or tending to connect him with its commission; and [¶] (3) that he heard the accusation and understood its nature [¶] — then the circumstance of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation was true. [¶] Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence or conduct of the accused in the face of it. Unless you find that a defendant's silence or conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement."
Sison claims that Martin's "what we did the other night" comment was not an accusatory statement because there was no evidence that Martin "was referring to [Sison], or whether he was simply [referring] to a story he had already told [Sison]." We are not persuaded. The only reasonable reading of Martin's "what we did the other night" remark to Sison is that Martin and Sison did something together the other night — in this case carjack a vehicle. If the statement were false, a reasonable person would have responded by denying any involvement in the carjacking. Sison was not merely silent in the face of Martin's statement; he affirmatively adopted it by saying "yep, yep, yep."
There was no abuse of discretion in allowing the evidence before the jury.
E. Exclusion of Evidence that Luna was a Drug Dealer
Sison contends the trial court erred in excluding evidence that Luna was an alleged drug dealer, which the defense sought to introduce during the cross-examination of Luna's girlfriend and of Detective Smith. Smith had referenced in a report information from the Drug Enforcement Agency that Luna had stolen one or two pounds of methamphetamine from drug dealers who then threatened revenge.
The law is well-established that only relevant evidence may be admitted. (Evid. Code, § 350; see also Evid. Code, § 351 ["No evidence is admissible except relevant evidence."].) " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Sison claims that evidence of Luna's alleged role as a drug dealer was relevant to a third party culpability defense; presumably, this argument is based on the victims of Luna's methamphetamine heist wanting revenge because there is no other plausible argument for the relevancy of Luna's alleged status as a drug dealer in the trial.
In People v. Lewis, supra, 26 Cal.4th at pages 372 to 373, our Supreme Court reiterated the basic rules for admission of third party culpability evidence:
" 'To be admissible, the third-party evidence need not show "substantial proof of a probability" that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' [Quoting People v. Hall (1986) 41 Cal.3d 826. 833.] We emphasized that 'courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352).' [Quoting People v. Hall, supra, 41 Cal.3d at p. 834.]" (People v. Lewis, supra, at p. 372 (Fn. omitted.)
The court correctly excluded evidence of Luna's alleged drug dealer status as irrelevant; the court acted well within its discretion. The court did not invade the jury's province; it simply made a threshold evidentiary ruling to exclude speculative evidence. (People v. Hall, supra, 41 Cal.3d at p. 834.) This purported third party culpability evidence was too speculative to be relevant. (See People v. Babbitt (1988) 45 Cal.3d 660, 682 [evidence is irrelevant if it produces only speculative inferences].) No evidence linked the unknown drug dealer/victims to Luna's murder. No evidence placed the drug dealers at the murder scene or nearby. A third party's motive, by itself, is insufficient to raise a reasonable doubt about a defendant's guilt. Evidence of Luna's alleged drug dealer status "failed to meet the threshold requirement of relevance." (Id. at p. 685.)
Further, the exclusion of irrelevant third party culpability evidence did not infringe on Sison's constitutional rights to due process and to present a defense. (People v. Adams (2004) 115 Cal.App.4th 243, 254; see also People v. Robinson (2005) 37 Cal.4th 492, 626-637 [ordinary evidentiary rules do not infringed on constitutional right to present a defense].)
F. Failure to Instruct that Di Francesco was an Accomplice as a Matter of Law
Sison contends that Di Francesco was an accomplice as a matter of law, and the court erred by failing to instruct the jury to this effect, thereby leaving it to the jury to resolve Di Francesco's accomplice status. Sison also contends the court erred by limiting the accomplice instructions to Di Francesco. These contentions lack merit.
The testimony of an accomplice requires corroboration and must be viewed with caution. (§ 1111; People v. Tobias (2001) 25 Cal.4th 327, 331.) An accomplice is a person "liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111; see also People v. Horton (1995) 11 Cal.4th 1068, 1113-1114 ["principal" include accomplice].) A "principal" in the crime is one who is "concerned in the commission of a crime, [regardless of] whether [he or she] directly commit[s] the act constituting the offense, or aid[s] and abet[s] in its commission[.]" (§ 31.) One is liable as an aider and abettor if he or she acts with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.)
A "[d]efendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence." (People v. Sully (1991) 53 Cal.3d 1195, 1228 (Sully).) " '[W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,' including the need for corroboration. . . ." (People v. Tobias, supra, 25 Cal.4th at p. 331.) Determination of whether a person is an accomplice within the meaning of section 1111 is a factual question for the jury "unless the evidence permits only a single inference." (Sully, supra, at p. 1227.) A court can properly determine whether a witness is or is not an accomplice as a matter of law "only when the facts regarding the witness's criminal culpability are 'clear and undisputed.' " (People v. Williams (1997) 16 Cal.4th 635, 679, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 759, italics added; see also People v. Fauber, supra, 2 Cal.4th at p. 834, [whether a person is accomplice is jury question unless there is no dispute on facts or inferences to be drawn from facts].)
Here the facts regarding whether Di Francesco was an accomplice were far from being clear and undisputed. According to Di Francesco, he was unaware of Martin and Sison's plan to kill Luna and carjack his vehicle, and he did not procure the firearm nor participate in the murder. Martin testified that Di Francesco supplied the murder weapon and implied that Di Francesco killed Luna and carjacked the Lexus. It was up to the jury whether to believe Di Francesco's version of the murder or Martin's version; Di Francesco's accomplice status was a question fact for the jury. The court correctly did not instruct that Di Francesco was an accomplice as a matter of law.
Sison argues that Di Francesco was an accomplice as a matter of law under an aiding and abetting theory. Sison is mistaken; there was conflicting evidence whether Di Francesco was an aider and abettor or an accessory after the fact, which is not an accomplice. Again, it was a factual question for the jury.
Sison also argues that the court erred by limiting the accomplice instructions to Di Francesco; Sison maintains the court should have applied the instructions — including those stating accomplice testimony must be corroborated and viewed with caution — to Martin's testimony as well. However, Sison did not request the jury be given accomplice instructions as to Martin, and therefore there was no error. (People v. Smith (2005) 135 Cal.App.4th 914, 928 [accomplice instruction need not be given sua sponte when testifying witness is codefendant]; see also People v. Box (2000) 23 Cal.4th 1153, 1209.)
G. Sufficiency of Evidence to Support Sison's Murder Conviction
Sison contends the evidence was insufficient to sustain his murder conviction and the special circumstance finding that the murder was committed in the course of a robbery. The contention is without merit.
" 'In reviewing the sufficiency of evidence . . ., the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.)
There are two types of aider and abettor liability. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) An aider and abettor is liable not only for the originally intended crime, but also "for any other offense that was a 'natural and probable consequence' of the crime aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman).) Whether the crime actually committed is a natural and probable consequence of another intended crime presents a factual issue for the jury and requires an objective inquiry — that is, whether the committed crime was reasonably foreseeable under the circumstances of the case. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) Under the "natural and probable consequences" doctrine, the trial court must identify the target crimes that the defendant might have aided or abetted. (Prettyman, supra, 14 Cal.4th at pp. 254, 266-270.)
In this regard, the court instructed jury pursuant to CALJIC No. 3.02 as follows: "One who aids and abets another in the commission of a crime [or crimes] is not only guilty of that crime [or those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant JEFFERSON SISON guilty of the crime of Murder, as charged in Count Four, you must be satisfied beyond a reasonable doubt: [¶] 1. That the crime of Robbery . . . or Unlawful Taking Of A Vehicle . . . . was/were committed; [¶] 2. That the defendant JEFFERSON SISON aided and abetted that crime or those crimes; [¶] 3. That a co-principal in that crime committed the crime of Murder; and [¶] 4. The crime of Murder was a natural and probable consequence of the commission of the crimes of Robbery and/or Unlawful Taking Of A Vehicle. [¶] In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen. [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant JEFFERSON SISON aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of Murder was a natural and probable consequence of the commission of that target crime."
Applying these legal principles, we conclude substantial evidence supported Sison's murder conviction as an aider and abettor of shooter Martin. There was ample evidence that Sison aided and abetted Martin in the commission of the target offense (armed robbery), which would naturally and probably lead to Luna's death under the circumstances of the case.
The evidence showed that Sison and Martin stole Luna's Lexus. In anticipation of this crime, Sison gave a gun to Martin that evening and told Martin, "Here, you do it." Martin used the gun to kill Luna so that he and Sison could steal Luna's vehicle. The jury could reasonably infer that Sison gave Martin the gun with the intent of facilitating and encouraging the theft of Luna's Lexus — the carjacking of the Lexus. Thus, there was substantial evidence of the target crime, Sison's participation in the target crime, and coprincipal (Martin) committing the murder. The evidence also supports a finding that a reasonable person in Sison's position should have known that murder was a reasonably foreseeable consequence of their plan to carjack the Lexus. Armed robbery — especially in an isolated area — can support a reasonable inference that murder is a natural and probable consequence of the target crime. (See Prettyman, supra, 14 Cal.4th at pp. 262-263; People v. Nguyen, supra, 21 Cal.App.4th at pp. 530-531, 532.)
Sison also contends that there was insufficient evidence to support the robbery special circumstance finding. We examined this issue with respect to Martin in Parts IC. and ID., ante, and rejected the contention. For the same reasons, we reject Sison's contention.
H. Cumulative Error
Sison contends that the cumulative effect of the trial court's rulings was prejudicial and merits reversal. (People v. Hill, supra, 17 Cal.4th at p. 844.) We have found no errors by the trial court; however, we are reversing Sison's conviction on the Arnquist carjacking count because the joint trial deprived him of a fair trial on that count. Otherwise, there was no error. Accordingly, there is no cumulative error.
DISPOSITION
As to Sison, the judgment of conviction on count 1 (Arnquist carjacking) is reversed. In all other respects, the judgment is affirmed.
As to Martin, the judgment is affirmed in its entirety.
WE CONCUR: McCONNELL, P. J., BENKE, J.