Opinion
B189946
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. MARK STANFORD MILO, JR., Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Mark Stanford Milo, Jr. was tried with his sister, Kaywana Rose, for carjacking and murder. Rose testified that Milo was solely responsible and eight jurors believed her. The only issue on appeal is whether Milo suffered prejudice from the courts error in failing to instruct the jury regarding the definition of accomplice, that an accomplices testimony must be corroborated, and that an accomplices testimony must be viewed with caution. We find that it is not reasonably probable absent the error the jury would have reached an outcome more favorable to Milo and affirm the judgment.
PROCEDURAL BACKGROUND
Milo and Rose were charged with the murder and carjacking of Victor Navarro. It was also alleged that a principal was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1).
Milo and Rose were tried together to the same jury. Rose testified in her defense that Milo was solely responsible for the murder and the carjacking. The trial court did not instruct the jury with CALJIC Nos. 3.10, 3.11, 3.12, or 3.18 which define an accomplice, the evidence necessary to corroborate the testimony of an accomplice, and how to view the testimony of an accomplice.
That instruction provides: "An accomplice is a person who [is] [was] subject to prosecution for the identical offense charged [in Count[s] ___] against the defendant on trial by reason of [aiding and abetting] [or] [being a member of a criminal conspiracy]."
That instruction provides in part: "You cannot find a defendant guilty based upon [the testimony of an accomplice] [or] [the testimony by a codefendant that incriminates the defendant] unless that testimony is corroborated by other evidence which tends to connect [the] [that] defendant with the commission of the offense."
That instruction provides in part: "To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged."
That instruction provides: "To the extent that [an accomplice] [or] [a codefendant] gives testimony that tends to incriminate [the] [a] [another] 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."
The jury found Milo guilty of first degree murder and carjacking. It further found true the personal use enhancement. The jury was unable to reach a unanimous verdict with respect to Rose, and the trial court declared a mistrial with respect to her. Milo was sentenced to a total term of twenty-five years to life. Milo timely appealed.
FACTUAL BACKGROUND
On November 14, 2004, Sonja Careys house in San Bernadino was burglarized. Carey called the father of her two sons, Milo, and asked him for help. Milo, who was in Los Angeles, said that he would go to San Bernadino as quickly as possible. Carey also spoke to Rose and Rose agreed to help.
Mid-Valley taxi cab received a call from cell phone number (909) 770-0419 on November 14, 2004. The phone number for Mid-Valley taxi cab was placed on a payphone outside of the Food 4 Less in Baldwin Park. A person who identified herself as "Crystal" stated that she was waiting in front of Food 4 Less and needed a taxi. Crystal was laughing, and a man who could be heard in the background also was laughing. Cell phone number (909) 770-0419 belonged to Rose.
Navarro, a taxi driver, was on duty that night and responded to "Crystals" call. He agreed to pick up "Crystal" in front of the Food 4 Less. Surveillance tapes apparently showed Milo walking into the Food 4 Less store on November 14, 2004, at approximately 11:41 p.m. Surveillance tapes indicated that a taxi arrived that night in front of the store.
Michael Orona was in a shopping center near an In-N-Out restaurant at approximately 11:30 p.m. to 12:00 a.m. on November 14, 2004. Two people in a cab pulled into the parking lot. A woman asked for directions to San Bernardino. Orona identified both Rose and Milo, but was more certain of his identification of Rose.
On November 14, 2004, Joey Hernandez, an employee of In-N-Out Burger in Baldwin Park, was notified that there was a body lying in the street. The body was identified as Navarro. He was rushed to the hospital, but later pronounced dead as a result of gunshot wounds.
Officer Rudy Camps responded to a call for a vehicle impound and found Navarros cab. There was a bottle of gin in the back seat. DNA on the bottle matched Milos DNA. Police searched Careys house and found a gun case in it. The gun case did not belong to Carey or her kids. The case would have fit a gun that fired the bullets retrieved from Navarros body. Milo did not live with Carey but kept some belongings at her house.
Kaywana Roses Testimony
On November 14, 2004, Milo contacted Rose and told her that Sonja Carey had been burglarized. Rose told Milo that if he were able to find a ride she would go with him to San Bernadino to help Carey. Milo found a ride, and picked up Rose. Rose did not ask if the car had been stolen. Milo was drinking gin. Rose knew Milo had a gun because he always carried one since he was an active member of a gang.
When Milo and Rose had a flat tire, they exited the freeway and walked to the parking lot of a Food 4 Less. Milo took his gun out of his pants and went into the store to use the rest room. Milo told Rose to call a cab and a pay phone nearby had the number for a cab company. Rose used her cell phone to call a cab. Milo preferred she use a pay phone, but Rose did not want to go inside the store to get change. Milo told Rose not to give the cab company her name and so she asked for a cab using the name "Crystal."
A cab picked up Rose and Milo. Shortly after the driver started en route, Milo said " `Okay. Thats enough. Never mind. " The driver indicated the fee would be $3. The driver opened the doors for Milo and Rose. As the driver was walking back to the cab, Rose heard the first shot. The driver hit the ground. Milo yelled for Rose to get into the cab. Milo first appeared to get into the cab but then returned to the driver and shot him a second time. Rose asked Milo why he shot him a second time and Milo responded " `because he was still talking. " Rose did not expect Milo to shoot the driver and was shocked after he did.
Milo was driving the cab but could not find the freeway to San Bernadino. They stopped in a parking lot and at Milos request, Rose asked someone there where the freeway entrance was located.
On November 15, 2005, Milo, Rose and their younger sister, Mykiesha Gauff, were traveling to San Bernadino. Milo told Gauff that he "took a car and shot the driver."
Rose admitted that when she was 17 she attempted to carjack an elderly woman. Rose also admitted that she was a member of the Hoover street gang. In addition, Rose lied to police officers when they questioned her about the shooting. At trial she testified that she lied because she was trying to protect her brother.
Milos Defense
Milo did not testify in his defense. He called Anthony Auer who testified that on his way to work on November 14, 2005, he saw a white taxi parked near the curb near the In-N-Out in Baldwin Hills. Auer saw three Hispanic people in the cab.
DISCUSSION " `[W]henever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies, the court should sua sponte instruct the jury as follows: " `To the extent 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 the case." " (People v. Box (2000) 23 Cal.4th 1153, 1208.) The trial court erred in not giving this instruction.
The Attorney General does not argue otherwise.
In Box, the high court found that the defendant was not prejudiced by the failure to give the instruction because the jury was aware that the accomplice "had every motivation to shift blame" to the defendant, the accomplices testimony was corroborated by physical evidence and other testimony. (People v. Box, supra, 23 Cal.4th at p. 1209.) It was "not reasonably probable that the jury would have reached a result more favorable to defendant had it been instructed to view with care and caution that portion of [the accomplices] testimony that inculpated defendant." (Ibid.)
The trial court also erred in not giving the related instructions regarding the definition of accomplice and the need for corroboration of an accomplices testimony. (People v. Avila (2006) 38 Cal.4th 491, 561-562.) "A trial courts failure to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there is `sufficient corroborating evidence in the record. [Citation.] To corroborate the testimony of an accomplice, the prosecution must present `independent evidence, that is, evidence that `tends to connect the defendant with the crime charged without aid or assistance from the accomplices testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.]" (Id. at p. 562.)
Penal Code section 1111 provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
Here, it is not reasonably probable the jury would have reached a result more favorable to the defendant if it had been properly instructed. Milos counsel argued as follows to the jury: Roses testimony was "unbelievable, not trustworthy, and not worthy of you embracing." He argued: "But the bottom line or the only thing that we should consider with Kaywana Rose is her credibility, whether you should believe her, whether anybody should believe her. And I ask you to think about this: Would you . . . buy a used car from Kaywana Rose? Would you let Kaywana Rose baby-sit your child? Would you let Kaywana Rose baby sit your house? Okay. And would it make a difference to you if Kaywana Rose says, Hey, I declare Im Kaywana Rose. I am telling the truth, and this car is a good used car. It aint even stolen. Or shes got a stack of Bibles and put her hand up and say, You know what? Your child is good in my car. And would you trust her if she told you, well, you know what? I wont steal nothing from your house. The answer is no."
In addition to Milos counsels argument, the prosecutor pointed out to the jury that Roses statements "always minimized her own involvement in the crime . . . ." The jury knew that Rose was on trial and therefore had the motive to minimize her involvement in the crime as emphasized by the prosecutor.
Roses testimony was corroborated with physical evidence and the testimony of other witnesses. There was evidence that Milo entered Food 4 Less in Baldwin Hills from surveillance tapes. There was evidence that the phone booth outside Food 4 Less had the number of Mid-Valley cab and that Roses cell phone was used to call the cab. Milos DNA was found inside a gin bottle located inside Navarros cab, placing him inside the cab. In addition, Orona identified Milo as driving the cab when Rose asked him for directions to San Bernadino. This independent evidence links Milo to the crime.
Milo argues that he suffered prejudice because "[t]he only direct evidence that it was appellant, and not codefendant, who carjacked and shot Navarro was codefendants testimony and she had every motivation to shift blame to appellant." But Milos defense was that three Hispanic people committed the crime, not that Rose shot Navarro. His counsel argued to the jury "Mr. Auer sees three Hispanics . . . . There is no way that you can mistakenly identify Mark Milo as a Hispanic." Even assuming that it was Rose "who carjacked and shot Navarro," Milo would still be culpable as an aider and abettor and the jury was instructed that those who actively commit the crime are equally guilty with those who aid and abet the commission or attempted commission of the crime. As Milo acknowledges, without Roses testimony the evidence "placed appellant with codefendant when she called for a taxi . . . inside the cab . . . and driving the taxi after Navarro was killed. . . ." The failure to give the instructions did not undermine Milos defense. Milo shows no prejudice resulting from the trial courts failure to properly instruct the jury.
DISPOSITION
The judgment is affirmed.
We concur:
BOLAND, J.
FLIER, J.