Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Pounders, Judge. Los Angeles County Super. Ct. No. BA262173
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Ramiro Mungia appeals from the judgment entered following his conviction by jury on count 1 – first degree murder (Pen. Code, § 187) with special circumstance findings that he committed the offense during an attempted robbery and an attempted burglary (Pen. Code, § 190.2, subd. (a)(17)(A) & (G)), count 3 – first degree attempted residential robbery (Pen. Code, §§ 664, 211) in concert (Pen. Code, § 213, subd. (a)(1)), and count 5 – first degree attempted burglary with a person present (Pen. Code, §§ 459, 664, 667.5, subd. (c)(21)), with findings as to each offense that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The court sentenced appellant to prison for a total unstayed term of one year plus life without the possibility of parole.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on February 19, 2004, appellant, Alex Lopez, Adrian De La Cruz, Luis Henriquez, and others went to the home of Pedro Garcia, Sr., intending to burglarize it and commit robbery.
Lopez, De La Cruz, and Henriquez were at one point codefendants. They are not parties to this appeal.
Later, Garcia, Sr. and Henriquez were talking at the front door. Pedro Garcia, Jr., who was inside the home, approached. Henriquez pulled out a gun and forced his way inside. Garcia, Jr. forced Henriquez back outside and the two struggled over the gun. Appellant, standing nearby, fired numerous shots at the front door of the house. Garcia, Sr., shot twice, was mortally wounded. While Garcia, Jr. and Henriquez continued to struggle, appellant approached and fired a gun in Garcia, Jr.’s direction. Garcia, Jr. did not see appellant shoot in a different direction.
2. Defense Evidence.
Appellant presented no defense evidence. Henriquez testified in his own defense. Henriquez denied that he had attempted to commit burglary or robbery, and claimed he had gone to the location because appellant and others wanted to buy drugs. According to Henriquez, appellant gave Henriquez money to buy drugs, and Henriquez agreed to do so. Henriquez bought drugs from Garcia, Sr., but appellant later complained to Henriquez about the amount of drugs which Garcia, Sr. had sold to Henriquez. Appellant told Henriquez to return and complain, and Henriquez did so.
Henriquez and Garcia, Sr. disputed about the amount of the drugs. Garcia, Jr. approached Henriquez with a gun, and Henriquez and Garcia, Jr. struggled over it. Henriquez heard shots coming from a different gun behind him. Henriquez later gained possession of the gun which Garcia, Jr. had possessed, and Henriquez drove away with appellant and De La Cruz.
The court declared a mistrial as to Henriquez after the jury was unable to reach a verdict as to him.
CONTENTION
Appellant claims the trial court erroneously failed to instruct the jury sua sponte that the jury had to decide whether Henriquez was an accomplice.
DISCUSSION
There Was No Need to Give Accomplice Instructions Pertaining to Henriquez.
1. Pertinent Facts.
During discussions concerning jury instructions, the court indicated it would not give CALJIC No. 3.19, because the court intended to give CALJIC No. 3.16, which instructed that Lopez and De La Cruz were accomplices as a matter of law. Appellant did not during those discussions indicate that Henriquez might be viewed as an accomplice. The court gave standard instructions on accomplice liability, including CALJIC No. 3.11, which instructs that accomplice testimony must be corroborated, and CALJIC No. 3.18, which instructs that accomplice testimony incriminating a defendant should be viewed with caution. The court also instructed that if the crimes were committed, Lopez and De La Cruz were accomplices as a matter of law.
Appellant did not request that the court give, and the court did not give, instructions telling the jury to decide whether Henriquez was an accomplice. Moreover, appellant did not request that the court give, and the court did not give, CALJIC No. 3.19. CALJIC No. 3.19 states, “You must determine whether the witness ____________ was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that ____________ was an accomplice in the crime[s] charged against the defendant.”
The People prosecuted the murder charge on the theory that appellant committed felony murder with attempted robbery and attempted burglary as the predicate felonies.
2. Analysis.
We reject appellant’s claim that the trial court erroneously failed to instruct the jury sua sponte with accomplice instructions and/or with CALJIC No. 3.19. In People v. Terry (1970) 2 Cal.3d 362 (Terry), our Supreme Court stated, “Terry complains because the court did not, on its own motion, instruct the jury that it could not convict on the uncorroborated testimony of an accomplice (Pen. Code, § 1111) and that testimony of an accomplice – namely Juanelda – should be viewed with distrust [citation]. While the judge is required to give such instructions on his own motion in a proper case [citations], this was not a proper case. The very question submitted to the jury was whether Juanelda was an accomplice. To instruct the jury about accomplices in respect to her testimony might have been prejudicial to her. [Citation.]
“Ordinarily, the instructions on accomplice testimony need be given on the court’s own motion only when the accomplice witness is called by the People [citations] or when a defendant in testifying implicates his codefendant while confessing his own guilt [citation]. In the latter instance, the confession on the stand, for all practical purposes, relieves the jury of the decision whether the declarant was an accomplice. When a defendant has confessed his guilt, there is little need to worry about prejudicing him by giving an accomplice testimony instruction for the protection of his codefendant. But here Juanelda testified in her own behalf, not as a prosecution witness, and denied her guilt. Thus, it was not incumbent to give the accomplice testimony instructions. [Citation.]” (Terry, supra, 2 Cal.3d at pp. 398-399, italics added.)
In People v. Ramos (1982) 30 Cal.3d 553 (Ramos), our Supreme Court stated, “in People v. Terry (1970) 2 Cal.3d 362, 398-399, we explained that when, as here, a codefendant testifies that he was not involved in the crime – and thus that he was not an accomplice – the trial court may properly conclude that the giving of accomplice instructions might improperly prejudice the codefendant’s case. Terry indicates that in such a situation the giving or withholding of such instructions lie within the sound discretion of the trial court.” (People v. Ramos, supra, 30 Cal.3d at p. 582, italics added.)
In People v. Smith (2005) 135 Cal.App.4th 914 (Smith), the court stated, “To be sure, our Supreme Court once held that the court must instruct the jury sua sponte to view incriminating accomplice testimony with distrust, regardless of which party calls the accomplice as a witness. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) But the Supreme Court later clarified that when the testifying accomplice is a codefendant, an accomplice instruction must be given only ‘when requested by a defendant.’ (People v. Box (2000) 23 Cal.4th 1153, 1209.) Thus, these cases have not disturbed the long-standing rule that an accomplice instruction need not be given sua sponte when the testifying accomplice is a codefendant. (See People v. Terry (1970) 2 Cal.3d 362, 398-399 . . . .)” (Smith, supra, 135 Cal.App.4th at p. 928, second italics added.)
In the present case, Henriquez was a codefendant who testified on his own behalf and denied his guilt of the present crimes. His defense was that he did not participate in an attempted burglary, an attempted robbery, or, a fortiori, felony murder based on those felonies. Instead, Henriquez’s defense was that the shooting of Garcia, Sr. was the regrettable aftermath of Henriquez’s participation in a drug purchase. The question submitted to the jury, however, was whether Henriquez was a principal to the charged crimes. To instruct the jury about accomplices in respect to his testimony might have been prejudicial to his case. The trial court had no sua sponte duty to give accomplice instructions or, in particular, CALJIC No. 3.19 or an equivalent instruction, as to Henriquez. (Cf. Ramos, supra, 30 Cal.3d at p. 582; Terry, supra, 2 Cal.3d at pp. 398-399; Smith, supra, 135 Cal.App.4th at p. 928.) Moreover, Henriquez’s testimony about his alleged involvement in a drug purchase did not incriminate appellant as to the charged crimes; therefore, appellant had no basis to request an accomplice instruction. (Cf. Smith, supra, 135 Cal.App.4th at p. 929.)
In light of our conclusion that no instructional error occurred, there is no need to address respondent’s claim that appellant’s failure to request a clarifying instruction waived the issues he now raises, or appellant’s claim that the alleged instructional error was prejudicial.
None of the cases cited by appellant compels a contrary conclusion. This includes People v. Avila (2006) 38 Cal.4th 491 (Avila), People v. Box, supra, 23 Cal.4th 1153 (Box), and People v. Alvarez (1996) 14 Cal.4th 155 (Alvarez). We note Avila approvingly cited Terry, and characterized Terry as holding that “generally, instructions on accomplice testimony must be given on the court’s own motion only when the accomplice witness is called by the prosecution or when a defendant, in testifying, implicates his codefendant while confessing his own guilt. But ‘where a defendant testifies in his own behalf and denies guilt while incriminating a codefendant, it is at most for the discretion of the trial judge whether to give accomplice testimony instructions on his own motion.’ [Citation.]” (Avila, supra, 38 Cal.4th at p. 562.) Avila did not expressly overrule Terry’s holding regarding the scope of the trial court’s sua sponte duty.
Moreover, the issues of whether a trial court erroneously failed, in violation of a sua sponte duty, to give (1) accomplice instructions concerning a testifying codefendant who denies his or her own guilt, or (2) CALJIC No. 3.19 or its equivalent, were not present in Avila, Box, or Alvarez. In Avila, the defendant requested accomplice instructions, including CALJIC No. 3.19, as to a testifying codefendant, in Box, the defendant similarly requested accomplice instructions, and, in each case, the issue was whether the trial court erred by refusing the request. (Avila, supra, 38 Cal.4th at pp. 560-561; Box, supra, 23 Cal.4th at p. 1209.) In Alvarez, the trial court gave the accomplice instructions. (Alvarez, supra, 14 Cal.4th at pp. 217-218.) Cases are not authority for propositions not considered. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J. ALDRICH, J.