Opinion
G044246 Super. Ct. No. 08WF1517
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALONSO NAJERA, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed as modified.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The superior court sentenced defendant Jose Alonso Najera to two consecutive terms of life in prison without the possibility of parole for his involvement in the murders of his father and mother, Jose Rueda Najera and Elena Castro Najera, with special circumstance findings of murder for financial gain and multiple murder. On appeal, defendant attacks the sufficiency of the evidence supporting his murder convictions. He also contends the financial gain special circumstance finding must be reversed because one alternate basis for it is unsupported by the evidence and the record suggests the jury relied on that factually bereft ground.
In addition, defendant attacks several trial court rulings he claims constituted prejudicial error. One concerns its finding his statements to the police were admissible even though the officers who questioned him failed to advise him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). Next, defendant claims the court erred in overruling his objections to the prosecutor's questioning of prospective jurors about the credibility of witnesses testifying under a grant of immunity. He also contends the trial court erred by failing to modify, on its own motion, the standard consciousness of guilt jury instructions to require the jury to find his deceptive statements and conduct were intended to benefit him. Finally, defendant claims the court erred by imposing a sentence of life without the possibility of parole for his second degree murder conviction on count 2. The last claim has merit, but otherwise we find no error and affirm the convictions.
FACTS
In the early morning hours of December 28, 1999, Mr. and Mrs. Najera were stabbed to death in a bedroom of their Garden Grove home. Defendant, who was 19 at the time, called 911 and reported the murders after he returned home from a pre- arranged party at the Villa Park residence of his "best friend," Gerald Johnson. In the 911 call, defendant told the dispatcher, "They killed my mom and dad."
The police questioned defendant twice the day of the murders and a third time on January 11, 2000. During the initial interviews, defendant told the police he had been working with his father for the past several weeks. Defendant's father normally arose at 4:30 a.m. and, to reach the job site, the two of them usually left home between 5:00 and 5:30 a.m.
On the night before the murders defendant's car had an oil leak. His father gave the keys to a mechanic named Arturo Aguillera and arranged for Aguillera to pick up defendant's car the next morning.
Defendant's parents imposed a curfew on him. He told the police on the night of the murders he waited until midnight, then "snuck out" of the house through his bedroom window, leaving it open. He pushed his mother's car into the street, started it, and drove to Johnson's residence. The party attendees included two other friends, Vince Torres and Brian Smith.
Smith testified he and Torres went to the Johnson residence in his champagne gray 1986 Toyota Corolla, arriving between 8:45 and 9:30 p.m. Before defendant arrived at the party, Torres borrowed Smith's car keys so that he and Johnson could go get something to eat. Smith claimed he did not see the car keys again until the next morning. Although he later denied it, in his initial statements to the police Torres acknowledged he had possession of the keys to Smith's car throughout the evening. According to Smith when defendant arrived at the party, he and Johnson spoke with each other in low voices for several minutes.
Defendant told the police that during the evening Smith fell asleep and Johnson went to his bedroom to sleep while he and Torres played video games. He denied anyone left the Johnson residence.
Around 3:20 a.m., Grady Owen, the Najeras' next door neighbor, went into his backyard to smoke a cigarette. Seeing defendant's bedroom light illuminated, Owen called defendant on his cellular telephone. Defendant told Owen he was at Johnson's home. At this point, Owen saw a gray, older-model Toyota pull into the Najeras' driveway. When Owen mentioned the vehicle's arrival, defendant told him that it was his father driving a car borrowed from a friend. The two then ended their phone call and Owen reentered his house.
During his initial interview with the police, defendant claimed he told Owen it was "'probably just one . . . of my dad's friends or something.'" In the second interview later the same day, defendant stated he told Owen "'[d]on't worry about it,'" because he "thought it was [Aguillera coming] to pick up the car." In both that interview and the third one two weeks later, defendant claimed Aguillera lived in Riverside and "probably ha[d] to go to work early." At trial, Aguillera testified he lived in Garden Grove and worked in Santa Ana. Owen testified he and defendant spoke a week after the murders and when he asked about the gray car, defendant then claimed it belonged to Aguillera.
At trial, Torres testified that, at one point when he and defendant were in the Johnsons' backyard smoking, Johnson entered the yard by climbing over the fence. Torres acknowledged he did not tell the police about this incident until being re-questioned on January 11, 2000. During that interview, Torres admitted he had agreed with defendant to create an alibi for Johnson by not disclosing Johnson left the party.
Torres described Johnson as wearing black, "Ninja style" clothing when he entered the yard and he had an object in his belt. He admitted telling the police the object could have been a knife, but claimed defendant told him it was a mini disc player. At trial, Torres claimed Johnson entered the house and defendant followed him. After defendant left the party, Johnson took a shower and changed his clothes. Torres also testified he and Johnson then went for a second ride in Smith's car, during which they stopped at a gas station, purchasing some gas and candy bars.
Defendant told the police he left Johnson's residence to return home around 4:10 a.m. He admitted pulling his mother's car into the driveway and parking it without first turning off the motor.
According to defendant, upon his return he noticed the side gates he had closed when leaving for the party were open, the light he left on in his bedroom was off while the hallway light was on, and there was blood on the window sill. He entered the house by climbing through the window and found his parents dead in the bedroom where his father slept. He then made the 911 phone call at 4:36 a.m.
A crime scene investigator who collected evidence from the Najeras' residence testified none of the rooms appeared to have been ransacked. A purse found in the house contained over $4,900. The police found blood stains in the bedroom where the victims were found, on the wall of a hallway, on a window sill at the rear of the house, and on a fence post leading to the rear of the residence. None of the other rooms in the house contained blood stains or signs of disturbance.
In the bedroom where the victims were found, an investigator discovered a ski mask. Subsequent results of DNA analysis on the mask established blood stains found on it matched Mr. Najera's profile. A DNA analysis of the mask's mouth area matched a sample profile obtained from Johnson. The police also retrieved blood samples from the interior of Smith's car and the wall of a shower located in the garage of the Johnson residence. DNA results from these blood samples matched the profile of Mr. Najera.
On New Year's Day 2000, Smith and Torres, along with an acquaintance named Marjorie Torregosa, met with defendant. Initially, Torres left Smith's car and spoke to defendant alone for 20 to 40 minutes. Smith testified that when Torres and defendant returned to the vehicle defendant acknowledged Johnson had left the party at some point during the evening on the night of the murders and they needed to establish an alibi for him. Torregosa testified defendant said the police had found a blond hair while searching his parents' residence. Smith claimed defendant said, "We need to get our story straight," and he told Torres not to mention Johnson's temporary absence to the police. Torregosa corroborated Smith's testimony that defendant and Torres discussed not telling the police that Johnson had left the party. She claimed Torres described Johnson as being dressed in black clothing that night. Torregosa also testified defendant said "I know Marjorie won't say anything."
The prosecution produced additional evidence tying defendant to the murders.
During all three interviews defendant admitted to the police that he frequently lies and makes up stories. He also acknowledged his parents wanted him to get an education and, although he enrolled in classes at a local community college, he dropped one course because of poor grades and was dropped from the remainder of his courses for failing to attend class. Defendant had not told his parents about dropping his classes and was planning to attempt forging a report card to conceal his nonattendance. Asked what would happened if they learned about it, defendant said they would "[p]robably sen[d him] to Mexico" to live with his grandparents and work on a ranch with "no restroom, no shower," wak[ing] up at the crack of d[a]wn" "[e]very day" and "[g]o[ing] to sleep . . . [when the] sun goes down."
Gabriel Gonzalez, defendant's cousin, told the police defendant "was a big spender" and "didn't know the value of money." There was also evidence defendant had been stealing money from his parents and his father discovered one theft. Owen testified a few months before the murders defendant showed him a large wad of cash. Defendant claimed he had assisted the FBI on the sale of a large stash of drugs and the agency allowed him to keep the money. Gonzalez told the police that in the fall of 1999, defendant admitted losing $18,000 in a drug deal and his father had learned about it. According to Gonzalez, Mr. Najera made defendant work with him to repay the money. Defendant complained to Gonzalez, "my dad is screwing me over" by making him work without getting paid. During the initial interviews defendant told the police that due to his parents' limited ability with English, he had paid the family's bills until shortly before the murders. He acknowledged "lately, my . . . dad's the one that's been writing the checks for the bills," claiming he "d[id not] have time to do it."
Defendant also informed the police his mother had placed a large amount of money in a safe deposit box because of "the Y2K thing," and only he and his mother had access to it. After the murders, it was determined the safe deposit box contained over $66,000. Defendant acknowledged that in a two-month period before the murders, he took approximately $2,000 from the safe deposit box without his mother's knowledge.
Defendant also admitted frequenting a strip club. According to a club employee, in early 1999, defendant began visiting the establishment twice a week on average, spending "a couple hundred dollars a night." Sometimes, he spent $1,000 in one evening. According to Gonzalez, after his parents' deaths, defendant "[s]pen[t] money like crazy." Gonzalez claimed that by December 2001, the money was "all gone."
In early November 1999, Johnson deposited $20,944.03 into his bank account. Two months later, Johnson's mother discovered the large balance in her son's account and asked him about it. Johnson told her it was a clerical error. Neither his mother nor his father could explain how Johnson could have accumulated that amount of money. However, his father acknowledged Johnson's maternal grandmother lived with them and she had a habit of hiding money around the house.
On January 4, 2000, Mariel Villatuya, a friend of Johnson's, received an envelope containing a letter from Johnson and a cashier's check for $20,000. In the letter, Johnson expressed his feelings for Villatuya. In part, the letter stated, "Don't worry about where [the money] came from, it was acquired legally and no one was harmed."
The police arrested Johnson for the murders of Mr. and Mrs. Najera on January 11. He was later charged with, convicted of, and imprisoned for the killings.
The day of Johnson's arrest, detective Dale Walker contacted defendant and obtained his consent to the third interview. Walker informed defendant of the arrest and some of the information obtained from Smith and Torres, and told defendant "I think you need to tell me the truth about what's going on." Asked what he meant by "'[w]e have to get our story straight,'" defendant replied "we had to" "[s]o we wouldn't be messing anything up." Defendant continued to insist Johnson did not commit the murders "[b]ecause he was with us. We were at his house."
Walker continued to encourage defendant "to be up front." Defendant then acknowledged Johnson "went out jogging that night." Initially he claimed that when Johnson appeared, he asked Johnson, "'Where you been,"" and Johnson replied, "'I don't want to tell you.'" When Walker said Johnson returned to the house "with blood on his face," defendant insisted it was only mud. Later, defendant gave a different version of his conversation with Johnson: "I go inside . . . and I'm like, 'Hey, what's up?' He's [Johnson] all, 'Nothing. I just came home from jogging.' I was like, 'Why are you dirty?' He's like, 'Oh, I fell.' I'm like, 'All right then are you al[]right?' He's like, 'Yeah.' . . . [S]o I went outside, finished my cigarette[. ]Gerald was walking around and . . . already took a shower and he went back to his room and I just left."
Asked why he initially failed to tell the police Johnson had gone jogging, defendant replied, "I didn't think it[ was] relevant." Walker also asked defendant why Johnson would need an alibi. Defendant replied "We were under the impression that [the police] didn't have anything and you needed to . . . arrest somebody." When Walker inquired how Johnson "c[a]me up with $20,000 dollars," defendant said, "I heard . . . that he inherited it from his grandma. Something like that."
Throughout the questioning, defendant insisted he was being "up front" with the police, denied he was "covering" for Johnson, and claimed he "already told [the police] what happened that night." Defendant also denied having a whispered conversation with Johnson upon arriving at the party.
DISCUSSION
1. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence supporting his convictions for aiding and abetting in or conspiring to murder his parents. He claims the convictions were based on "five main classes of [circumstantial] evidence:" the money trail; his own false statements and efforts to fabricate an alibi; Johnson's lack of a motive and the existence of a motive connecting him to the murders; and his inconsistent statements to Owen. He argues "each class of evidence is insufficient in itself to do more than raise a suspicion, and cumulatively, the amalgam fares no better. . . ." We conclude otherwise.
Since 1980, the California Supreme Court has applied the standard of review for insufficiency of the evidence claims employed by federal courts when reviewing a state conviction in a habeas corpus proceeding. (People v. Johnson (1980) 26 Cal.3d 557, 576 [declaring "California decisions state an identical standard" to that announced in Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]].) The Supreme Court recently restated the rule as follows: "'A reviewing court faced with such a claim determines "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." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty . . . ." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved. "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."'" [Citation.]' [Citation.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
Applying this standard, it is clear the record supports the jury's guilty verdicts. First, there was evidence defendant had a motive to eliminate his parents in the latter part of 1999. Although they insisted he continue with his education, defendant had dropped out of school because of poor grades and lack of attendance. He expressed concern that if his parents discovered this circumstance they might seek to teach him a lesson by sending him to Mexico to work on his grandparents' ranch.
In addition, defendant had stolen money from his parents. From statements he made to the police and his cousin, the jury could infer defendant acknowledged taking at least $20,000 in the months before the murders occurred. His mother was apparently unaware of the thefts, but with the concern over the "Y2K thing" coming to a head on January 1, 2000, she might soon discover the truth. Defendant's father had discovered at least one theft and angered defendant by making him work to repay the stolen money. The lying to his parents about his academic performance and repeated thefts of substantial sums of money from them, including his father's demand that he work to repay a portion of stolen funds, amounted to evidence of more than a mere parent-child conflict.
The physical evidence overwhelmingly established Johnson, possibly with the help of others, committed the murders. In contrast to defendant, Johnson's only apparent motivations for killing the Najeras were his close relationship with defendant and defendant's payment to murder at least his father if not both parents. Defendant acknowledged Johnson was his best friend. The prosecution presented evidence Johnson deposited over $20,000 into his bank account about six weeks before the murders occurred. Johnson's parents could not explain where their son would have obtained such a large sum of money. There was evidence Johnson might have surreptitiously acquired the money by discovering his grandmother's hiding places, but the jury apparently rejected this conclusion. As noted, "[s]imply put, if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.]" (People v. Farnam (2002) 28 Cal.4th 107, 143.)
Johnson's subsequent actions also suggest otherwise. When confronted by his mother about the bank account's large balance, Johnson claimed it was the result of a clerical error. But four days later, while under suspicion for his participation in the murders, Johnson attempted to dispose of the money by giving it to a girl friend, insisting in a letter to her that he obtained it lawfully and without harming anyone. Defendant's reliance on evidence suggesting "Johnson was a troubled . . . young man" does not defeat the jury's conclusion Johnson killed the Najeras in return for defendant paying him a substantial sum of money.
The prosecution presented evidence that defendant and Johnson, and possibly others, arranged for a party to be held at Johnson's home on the night of the murders to create an alibi for defendant, Johnson, and other possible confederates. Defendant initially insisted no one left the party before he returned home and discovered his parents were dead. But when the forensic evidence proved otherwise, defendant attempted to create a new alibi with Torres and Smith concerning Johnson's whereabouts. "In the context of the sufficiency of the evidence to support a finding of premeditated and deliberate murder, we have noted that evidence of a defendant's . . . telling false stories 'is highly probative of whether defendant committed the crime . . . .' . . . [S]uch postcrime actions and statements can support a finding that defendant committed a murder for which his specific mental state is established by his actions before and during the crime." (People v. Thompson (2010) 49 Cal.4th 79, 113.) Contrary to defendant's argument, creating a new alibi to provide cover for Johnson also helped him as well since other circumstantial evidence could be used to tie him to the murders.
Defendant's efforts to fabricate evidence, plus his contradictory statements concerning the gray Toyota Owen saw arriving at the Najeras' residence on the night of the murders also support his conviction. To support an inference of a consciousness of guilt based on false statements or efforts to fabricate evidence, "there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference. [Citations.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.)
As for Owen's observation of a car's arrival on the night of the murders, defendant's first assertion, that it was his father returning home in a borrowed car, was clearly a lie since defendant knew both of his parents were at home and asleep. His subsequent claim that it must have been Aguillera arriving to pick up his car for repair was also shown to be untruthful. Not only did Owen deny that was defendant's original explanation, but Aguillera testified he lived in Garden Grove, not Riverside as defendant claimed, and he worked in the adjacent city of Santa Ana. This testimony destroyed defendant's explanation for why the mechanic might have arrived at 3:00 a.m. to pick up the car.
Defendant claims his false statements and attempts to fabricate evidence alone could not support his conviction. We agree. But, as discussed above, there was much more to the prosecution's case against him. Defendant's assertion that any inference of a consciousness of guilt from his false statements and efforts to fabricate an alibi is weakened by the existence of a plausible explanation is unavailing. First, as explained above, this argument is inconsistent with the substantial evidence rule. Furthermore, we question whether a plausible, innocent explanation for defendant's false statements and efforts to fabricate an alibi exists in this case. As the Supreme Court noted in People v. Thomas (1992) 2 Cal.4th 489, "the many inconsistencies in defendant's statements are not so easily resolved" since "[n]o plausible explanation for them appears, apart from defendant's wish to shift suspicion away from himself" and, in this case, Johnson as well. (Id. at p. 516.)
Throughout his sufficiency of the evidence argument, defendant heavily relies on three cases: People v. Hall (1964) 62 Cal.2d 104, People v. Blakeslee (1969) 2 Cal.App.3d 831, and Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262. We find the reliance on these cases unavailing. First, the Supreme Court has noted that in "decid[ing] issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts. [Citation.]" (People v. Thomas, supra, 2 Cal.4th at p. 516.) None of the cited cases is factually analogous to this case.
Second, insofar as the ruling in Juan H. is concerned, "lower federal court decisions on points of state law [are] persuasive, [but] they do not control. [Citation.]" (People v. Gonzales (2011) 52 Cal.4th 254, 296.) Furthermore, as just noted, that case is factually distinguishable. It involved a minor's conviction for murder and attempted murder based on an aiding and abetting theory. The evidence showed he merely stood behind his brother while the brother confronted the victims, pulled a gun, and began firing at them. Here, there was significant evidence to support a conclusion defendant conspired with or aided and abetted Johnson, and possibly others, in killing his parents and creating an alibi for all of the participants.
Third, as for Hall and Blakeslee, both cases were decided before the California Supreme Court's restatement of the substantial evidence rule in People v. Johnson, supra, 26 Cal.3d 557, and the reasoning in each decision contradicts the current approach to sufficiency of the evidence claims.
Hall and Blakeslee concerned murder prosecutions where the defendant's guilt was based primarily on circumstantial evidence. In Hall, the Supreme Court rejected several items of incriminating circumstantial evidence by identifying one or more possible innocent explanations for each piece of evidence, which the court then concluded rendered the incriminating inference "unconvincing" (People v. Hall, supra, 62 Cal.2d at p. 110), "equivocal" (ibid.), or "add[ing]" either "little" (ibid.) or "nothing" (id. at p. 111) to a finding of guilt. The Court of Appeal employed a similar approach in Blakeslee. (People v. Blakeslee, supra, 2 Cal.App.3d at pp. 837-839.) As mentioned, after Johnson, "'"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In addition, both Hall and Blakeslee relied on "the absence of evidence that would normally be forthcoming" to overturn the defendant's conviction. (People v. Hall, supra, 62 Cal.2d at p. 111; see also People v. Blakeslee, supra, 2 Cal.App.3d at p. 839 ["One factor relevant to these questions is the absence of evidence we would normally expect to find in a murder prosecution based on circumstantial evidence"].) This approach is also contrary to the current analysis employed in reviewing insufficiency of the evidence claims. In People v. Story (2009) 45 Cal.4th 1282, the Court of Appeal reversed a murder conviction, in part finding the evidence insufficient to support it. The Supreme Court reversed this ruling, noting "[t]he Court of Appeal erred in focusing on evidence that did not exist rather than on the evidence that did exist. [Citation.]" (Id. at p. 1299; see also People v. Rodriguez, supra, 20 Cal.4th at p. 12 ["in reversing defendant's conviction, the [Court of Appeal] focused on what it found lacking in the prosecution's case and the strength of the inferences it drew from the evidence presented, rejecting contrary (but, in our view, equally logical) inferences the jury might have drawn" and "[i]n so doing, . . . essentially acted as an appellate fact finder and thereby deviated from its appropriate role"].) To the extent Hall and Blakeslee support defendant's argument we find them no longer correct statements of the law.
Consequently, we conclude the evidence supports the jury's verdicts in this case.
2. The Financial Gain Special Circumstance Finding
a. Introduction
The information charging defendant with the murders of his father and mother included special circumstance allegations of murder for financial gain and multiple murder. At trial, the prosecution argued the jury could find the financial gain special circumstance true regardless of whether it was defendant or Johnson who "gets the money, just as long as somebody benefits financially and that's one of the intents." The jury returned a true finding of murder for financial gain for defendant's first degree murder conviction in the death of his father.
On appeal, defendant does not dispute the sufficiency of the evidence to support a finding he stood to derive a pecuniary benefit from his father's murder. But he contends the financial gain finding on count 1 must be vacated because there was insufficient evidence Johnson benefitted from killing his parents. Defendant argues the fact "Johnson obtained a large sum of money" before the murders, constituted only a "superficial coincidence," and a conclusion the deposit constituted the consideration for the murders was "undermined" by evidence supporting the following inferences: "Johnson had another source of the money; what [defendant] stole [from his parents] fell well short of what Johnson deposited; . . . $20,944[.03] is a preposterous sum for payment of a murder for hire; the deposit took place more than six weeks prior to the crime, with no evidence as to why there was a delay; and Johnson was a close friend rather than a stranger who would demand compensation for the deed."
In addition, defendant argues the second degree murder conviction returned for the killing of his mother reflects the jury likely relied on this factually inadequate theory to return a true finding on the financial gain special circumstance. We conclude the evidence supports a theory Johnson expected to derive a pecuniary benefit from killing defendant's parents and thus reject his entire argument.
b. Analysis
"'To determine the sufficiency of the evidence to support a special circumstance finding, we apply the same test used to determine the sufficiency of the evidence to support a conviction of a criminal offense.'" (People v. Sapp (2003) 31 Cal.4th 240, 282.)
As he did with his attack on the sufficiency of the evidence to support his murder convictions, defendant points to interpretations of the circumstantial evidence that would support a not true finding as to the financial gain special circumstance allegation. "Contrary to what defendant suggests, the judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial." (People v. Millwee (1998) 18 Cal.4th 96, 132.)
Clearly, each item of "evidence" upon which defendant relies was before the jury. While it could have found the evidence failed to support a conclusion Johnson killed defendant's parents with an expectation of deriving a financial benefit from doing so, the evidence also supports a true finding on this issue. Contrary to defendant's argument, there was evidence from which the jury could have concluded defendant stole much more than $20,000 from his parents. He had control of the family's financial accounts until just a few months before his parents' murders, and during the year preceding the killings he had been spending large sums at the strip club. The possibility Johnson could have obtained the money from his grandmother or other relative, the discrepancy between what the prosecution theorized was the consideration for the murders ($20,000) and the amount Johnson deposited into his bank account ($20,944.03), and the six-week delay between the deposit and the murders do not render inferences in favor of a true finding on the financial gain special circumstance irrational.
Finally, even if Johnson was motivated to kill defendant's parents out of friendship, that fact alone would not defeat the jury's finding in this case. To support a true finding on the financial gain special circumstance "financial gain need not have been a '"dominant," "substantial," or "significant" motive for the murder.' [Citation.]" (People v. Sapp, supra, 31 Cal.4th at p. 282; see also People v. Carasi (2008) 44 Cal.4th 1263, 1308 ["such gain need not be the sole or main motive for the murder"].)
We conclude the evidence supports a finding Johnson was motivated, at least in part, to kill defendant's parents for financial gain. As a consequence, we need not discuss the merits of defendant's assertion it is likely the jury relied on a factually inadequate theory to support the financial gain special circumstance.
3. The Admissibility of Defendant's Statements to the Police
a. Introduction
As noted, the police questioned defendant on three occasions after his parents' murders. The prosecution introduced the interviews as part of its case-in-chief to support defendant's conviction.
Two interviews occurred at the police station the day of the murders. A third police station interview was held on January 11 after Johnson's arrest. At no time during any of the interviews did the police advise defendant of his Miranda rights or obtain a waiver of those rights before questioning him.
The trial court conducted a pretrial hearing under Evidence Code section 402 to determine the admissibility of defendant's statements. At the end of the hearing, the court found defendant's statements admissible, ruling the prosecution carried its burden of establishing the interviews were not custodial.
b. Factual Background
(1) The First Interview
Garden Grove police officer Allan Harry testified he went to the Najeras' residence in response to defendant's 911 call on December 28, 1999. Upon arriving, Harry saw defendant had been handcuffed by another officer, but told defendant it was only for the purpose of officer safety. Harry asked defendant what was going on and then entered the residence. He left the house 15 to 20 minutes later and noticed defendant was no longer in handcuffs. Harry asked defendant if he would come to the police station and answer questions and defendant agreed to do so.
Defendant traveled to the police station in Harry's police car. Harry took defendant to an unlocked room in the department's investigations unit where he interviewed defendant on and off over five and one-half hours. During the questioning defendant was offered and received coffee and food. He also had the opportunity to speak with his girlfriend and an aunt. Defendant was not handcuffed or threatened. Defendant signed a written consent to search the family home, had his hands swabbed, and provided the police with biological samples.
At one point, Harry informed defendant the department's crime scene unit had gone to the house to collect evidence. He explained this process "[t]akes some time" and "they'll be out there for probably most of the day." Defendant asked, "So should I find somewhere else to stay for a few days," and Harry responded, "For a while."
While Harry asked defendant about possible suspects, the following colloquy occurred: "[Harry]: . . . [W]hat happened to your mother and father was, . . . quite frankly, . . . overkill, went . . . beyond what was necessary. [¶] Do you have any idea who could do such a thing? [¶] [Defendant]: I told you, they have no enemies. . . . [¶] [Harry]: Seems like somebody was mad at [th]em. [¶] It was a very violent scene. And usually you don't see that kind of violence when someone is just breaking in to . . . steal something. [¶] [Defendant]: You're saying the person who killed them w[as] there to kill them? [¶] [Harry]: . . . [W]ell, may not have started out that way, but it sure finished that way. [¶] . . . [¶] [Defendant]: So what's gonna happen to me now? [¶] [Harry]: Well, we have to . . . finish talking to you, . . . you're the only surviving member of the household. I mean, one, you're the one who's also missing when this incident occurs. [¶] [Defendant]: What does that mean? [¶] [Harry]: You weren't home when it happened, so we . . . have to find out where you were. And we have to find out if there's any connection with friends, other relatives, things like that, . . . what could have happened in between when you left and when you returned. Could friends of yours have come over? Could friends of the family come over? Could relatives . . . have come over? Could neighbors have come over? [¶] [Defendant]: So am I a suspect? [¶] [Harry]: I would think everybody's a suspect. . . . [¶] [Defendant]: "Just everybody? . . . [¶] [Harry]: Oh, I mean I . . . suspect everybody. . . . I don't know who did it. Not yet."
Later, Harry explained the police would need to "[t]alk to [defendant's] friends" and repeated the "forensic science team and the coroner [are] go[ing] through the . . . crime scene . . . ." Defendant asked, "So when can I leave?" Harry responded a "lab tech[] is going to be here to take a . . . blood sample . . . from you . . . . And the . . . detectives are going to want to . . . talk to you . . . . It's a pretty lengthy process." Defendant answered, "I understand."
At one point, defendant asked to use the bathroom. When he first made the request, Harry replied, "Absolutely. Hold on just a second." A second request came while defendant was executing the house search consent form for an investigator. Harry responded, "Yeah."
Sometime later defendant asked, "Why can't I use the . . . restroom." Harry explained, "Because you came in and out of the . . . same window where it appears that whoever killed your parents came in and also went out of. They're going to have a forensic science team come here and check your hands . . . for any traces of evidence that you may have picked up . . . going in or out of the window." A few minutes later, another investigator entered the interview room and explained to defendant the police wanted to swab his hands, noting "it's just simply to . . . eliminate you. . . . [Y]ou're not a suspect in this case, but we have to eliminate you as . . . being a suspect." Defendant responded, "I understand." Harry estimated the delay between defendant's first request and when he was finally allowed to use the bathroom was one to one and one-half hours.
(2) The Second Interview
After Harry finished questioning defendant, Walker interviewed him for about two hours. Many of the Walker's questions covered the same subjects Harry discussed with defendant. During this time, the interview room door remained unlocked. Walker never threatened defendant. When the interview ended, Walker asked defendant if he would allow the police to fingerprint him and defendant agreed to do so. Walker made arrangements for defendant to be transported to the home of his aunt and uncle.
During the latter portion of this interview, Walker's questions became more accusatory. Walker noted defendant's parents appeared to be "[r]unning [his] life" and, after mentioning defendant's efforts to conceal his dropping out of school and taking money from the safe deposit box, stated "I'm having trouble with [you] being 19 years old and doing all this stuff so your parents don't get mad at you." Defendant responded, "they're my parents and I have to respect what they say."
Walker responded, "But . . . you're sneaking out of the house at nighttime . . . after they go to bed to go hang out with your buddies" and "now all . . . that you've been doing . . . your parents are finding out about . . . . And they're finding out that [defendant] isn't their good little boy . . . and maybe something happened here. [¶] . . . [¶] . . . You know, be realistic about this. . . . [¶] . . . [¶] . . . Because the person who came into your house . . . didn't go there to steal anything. Looks to me like . . . they went there . . . to do exactly what they did. . . . That was a very angry individual. [¶] Are you that angry individual? [¶] [Defendant]: No, I'm not sir. [¶] [Walker]: Is it somebody else? You don't seem to be . . . real upset about this. [¶] [Defendant]: I am upset, sir. It's just that my dad always taught me not to be a cry baby. . . . [¶] [Walker]: . . . [Y]ou can be upset and not cry. . . . You don't show me that you're emotional about this whole thing. [¶] . . . [¶] . . . [C]onvince me that you're not the one who did this." Throughout this line of questioning, defendant expressed his love for his parents and denied killing them.
After a break, Walker continued questioning defendant about his activities and whereabouts the night before the murders and other topics. He then returned to the issue of defendant's possible involvement in the murders. "[E]very 19-year-old kid that I've talked to . . . that's been in your situation where they've had controlling parents are very angry about it . . . . [B]ut you don't seem to be. And . . . it kinda bothers me." Defendant acknowledged his parents' controlling nature "bothered" him and he "was upset. But . . . I wasn't as upset as . . . to go and murder my parents."
At the end of the interview Walker asked defendant "where are you going to stay from now on," and said "I need you to stay in touch with me so . . . if I need something clarified [I can] . . . get ahold of you . . . ."
(3) The Third Interview
The details of the third interview are summarized above in the statement of facts. At the 402 hearing, Walker testified he contacted defendant at his aunt and uncle's house. Walker acknowledged that, at this point, he believed defendant "had more involvement [in the murders] than what he was telling [the police]." He asked defendant to come down to the police station and defendant agreed to do so. The two traveled to the police station in Walker's car and defendant was placed in an unlocked interview room. Walker claimed he told defendant during the ride to the police station that he was not under arrest. This interview lasted a little over one hour.
Walker admitted that once the questioning began, he "accuse[d defendant] of being complicit in the murder[s] of his parents." At one point, defendant responded "I know my rights and . . . I know that . . . for you to be talking to me like this my lawyer needs to be present." The following colloquy occurred: "[Walker]: That's not right. [¶] [Defendant]: That's not right? [¶] [Walker]: No. That's not right. [¶] [Defendant]: So, I don't have a right to a lawyer? [¶] [Walker]: Not now, no. You're not under arrest. [¶] [Defendant]: All right."
Walker ended the interview, telling defendant "Okay. We'll get things squared away and get you back home." Defendant responded, "If you just want to give me my stuff I'll go home myself." Walker then said, "Okay. Just give me a minute."
c. Analysis
Citing to the interviews being conducted at the police station and the lengthy questioning, some of which suggested the police had focused on him as a suspect, defendant argues a reasonable person in his position would have believed he was in custody on all three occasions. We disagree.
"An interrogation is custodial, for purposes of requiring advisements under Miranda when 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation. [Citation.] All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present. [Citation.] [¶] 'Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must "apply a deferential substantial evidence standard" [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, "a reasonable person in [the] defendant's position would have felt free to end the questioning and leave" [citation].' [Citation.]" (People v. Moore (2011) 51 Cal.4th 386, 394-395.)
Applying these principles we conclude the trial court properly ruled a reasonable person in defendant's position would not have considered himself to be in custody during any of the three interviews.
On the night of the murders, defendant was initially handcuffed by the police. But that was solely done for officer safety purposes. Other than Harry's general query about what was going on, the police did not question defendant while he was handcuffed. Furthermore, the handcuffs were soon removed. "'For Miranda purposes, we think the crucial consideration is the degree of coercive restraint to which a reasonable citizen believes he is subject at the time of questioning. Police officers may sufficiently attenuate an initial display of force, used to effect an investigative stop, so that no Miranda warnings are required when questions are asked.' [Citation.]" (People v. Thomas (2011) 51 Cal.4th 449, 478 [no Miranda advisement violation where the defendant initially held in backseat of patrol car but removed from it before questioning began]; see also In re Joseph R. (1998) 65 Cal.App.4th 954, 958 ["because the time during which [the minor] was restrained was extremely short, it seems likely he was handcuffed and placed in the police car merely so the officer could maintain control of the minor while he carried on another portion of his investigation"].)
Harry testified he asked defendant to come to the police for questioning and defendant agreed to this request. The trial court expressly found the police did not tell defendant he was under arrest at this point. As for the January 11 interview, Walker again contacted defendant and asked him to come to the police station for the third interview. Although there was a factual dispute concerning whether Walker expressly told defendant he was not under arrest, "'[i]f there is "conflicting testimony, the court must 'accept that version of events which is most favorable to the People, to the extent that it is supported by the record.' [Citation.]" [Citations.]' We accept factual inferences in favor of the judgment or order below, even when we must independently review the legal conclusion the trial court has drawn. [Citations.]" (People v. Stansbury (1995) 9 Cal.4th 824, 831.)
This case is analogous to People v. Moore, supra, 51 Cal.4th 386. There the defendant was the last person to see the victim alive. After the police questioned the defendant while sitting in the backseat of a patrol car, an officer asked him, "'[W]ould you volunteer to come down to the station and talk to me? I need to take a real detailed statement about it.'" (Id. at p. 396.) The defendant asked, "'[C]an we do it in the morning[,]'" but the officer said, "'No, we have to do [it] now.'" (Ibid.) The Supreme Court ruled this exchange did not render the subsequent station questioning custodial in nature. "[D]efendant, the last person known to have seen the victim and obviously an important witness, was asked—and freely agreed—to come to the station to give a statement. In context, [the officer's] statement that 'we have to do [it] now' rather than the next day clearly referred only to the importance of getting information promptly and did not convey a command that [the] defendant go to the station." (Id. at p. 402.)
Nor did the fact that the questioning took place at the police station render the situation custodial. Moore noted "Miranda warnings are not required ' simply because the questioning takes place in the station house . . . .'" (People v. Moore, supra, 51 Cal.4th at p. 402, quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495 [97 S.Ct. 711, 50 L.Ed.2d 714].)
Admittedly, the initial interviews were long. But defendant was the only surviving member of the Najera family and the one who contacted the police. After defendant inquired about when he could leave the station, Harry explained, "We just have to kinda go through a step by step process . . . . And . . . unfortunately, . . . you're the person that we have to go to . . . to find certain things out about your family because you're the only one left. . . . So you have to fill in the . . . background information. You have to fill in the details. So it takes a while."
Defendant notes the police did not immediately honor his request to use the bathroom. But again, Harry explained that since defendant had used the same window as the murderer, it was necessary to have forensic personnel swab his hands and collect any potentially material evidence that could be used to identify the killer.
Defendant also cites Harry's comment that "everybody's a suspect." But it was defendant, not Harry, that first broached the topic. Harry simply acknowledged that at the initial stage of the investigation it was not possible for the police to eliminate anyone from being the murderer. In addition, this exchange occurred after the two had discussed the need for defendant to find another place to stay while the crime scene investigation was conducted.
Walker's later questioning of defendant clearly suggested he considered defendant a suspect in the killings. But Moore, again quoting from Mathiason, noted "Miranda warnings are not required . . . ' because the questioned person is one whom the police suspect.' [Citation.] While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person's freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody. [Citation.]" (People v. Moore 51 Cal.4th at p. 402.) Furthermore, Walker's query "where are you going to stay from now on," and statement that defendant "need[ed] . . . to stay in touch with me" would communicate to a reasonable person he or she was not in custody. Thus, the circumstances of the second interview did not support a conclusion a reasonable person would have considered himself or herself subject to custodial restraint.
The same is true of the January 11, 2000 interview. This time Walker expressly accused defendant of being complicit in his parents' murders. But the questioning again involved a one-on-one exchange in an unlocked room and lasted only about one hour. In addition, when defendant stated the police could not speak to him without his lawyer being present Walker made it clear defendant was not under arrest.
On both dates, once the police finished questioning defendant he was allowed to leave the police station. As noted in Oregon v. Mathiason, supra, 429 U.S. 492, the defendant "came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of [the] . . . interview [the defendant] did in fact leave the police station without hindrance. It is clear from these facts that [the defendant] was not in custody 'or otherwise deprived of his freedom of action in any significant way.'" (Id. at p. 495.)
Near the end of his argument on the Miranda issue, defendant conclusorily asserts Walker's failure to stop questioning him after he declared "my lawyer needs to be present" constituted a violation of his right to counsel. We conclude defendant's mere assertion of this issue with a general reference to Edwards v. Arizona (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] without any further argument constitutes a waiver of the claim. "'"[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]" [Citation.]' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1029; see also People v. Stanley (1995) 10 Cal.4th 764, 793.)
In any event, the claim is meritless. "Contrary to defendant's argument on appeal, '[t]he rule that interrogation must cease because the suspect requested counsel does not apply if the request is equivocal; "[r]ather, the suspect must unambiguously request counsel."' [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 587.) The Supreme Court has rejected claims that a defendant's mention of an attorney during an interrogation amounted to an unequivocal invocation of his or her right to counsel. (People v. Bacon (2010) 50 Cal.4th 1082, 1104 ["Viewed in context, . . . statement . . . 'I think it'd probably be a good idea for me to get an attorney' . . . was an ambiguous or equivocal reference to an attorney, which did not require the interrogating officer to cease questioning"]; People v. Williams (2010) 49 Cal.4th 405, 431, 432 ["'I want to see my attorney cause you're all bullshitting now[]'" "constituted an expression of frustration and, as the trial court suggested, game playing, and was not an unambiguous invocation of the right to counsel"]; People v. Davis, supra, 46 Cal.4th at p. 587 ["'Well then book me and let's get a lawyer and let's go for it, you know'" construed as "'a challenge,'" reflecting the "defendant was using 'as much technique as the people who were questioning him'"].)
The trial court did not err in admitting defendant's statements to the police.
4. Defendant's Claim the Prosecutor Preconditioned the Jury
At trial, Smith and Torres testified for the prosecution under grants of use immunity. Defendant cites an incident during voir dire where he claims the prosecutor used it "to persuade the veniremen, and elicit their agreement, that immunized witnesses are particularly credible, and their immunity should not be considered against them."
a. Factual Background
One of the topics raised by the prosecuting attorney while questioning the prospective jurors was their "need to . . . evaluate the credibility of the witnesses." The prosecutor presented the hypothetical of a bank robbery committed by several persons acting in different capacities and then asked a prospective juror, "Who do you think would have the most detailed information about that bank robbery scenario? The police? The witnesses? The bank robbers?" The juror answered "[t]he witnesses," and the prosecutor responded, "Most people would say the bank robbers because they planned it. They know who is involved." The prospective juror noted, "But we are not going to be hearing testimony from them. That's why I said the witnesses."
At this point the prosecutor asked "what if . . . one of the bank robbers was given immunity so that [he] can come in and testify . . . about everything that happened?" The prospective juror agreed he "[w]ould be willing to listen to that testimony."
The prosecutor noted "sometimes people are given immunity because they may say things that may incriminate themselves, and you have a constitutional protection not to be compelled to implicate yourself," and asked the prospective jurors "[i]f you heard from [such] a witness . . ., would you evaluate that testimony just like any other witness' testimony?" One prospective juror stated, "You spoke before about evaluating [a] witness' truthfulness, and I think that certainly speaks to that. I think if the person is offered immunity, what's [his] angle. I mean, you know, is he just flipping on his buddies because he is going to get off? Is he embellishing the story, making them appear more guilty because he is going to get off? [¶] I don't know. It is something to put into the equation." The prosecutor responded as follows: "Absolutely would. I say would you evaluate them just like any other witness? [¶] Those are the same things you would look at for any witnesses. [¶] . . . [¶] . . . What their motive is to tell the truth or not, right? Whether they have given a prior statement, whether they get anything."
As the prosecutor began to explain the different types of immunity, defense counsel asked to approach the bench. He then "object[ed] to this entire line [of voir dire]. . . . [N]ow we are telling the jury why Vincent Torres and Brian Smith got immunity. [¶] It is improper unless they hear it from the witness stand. . . . And [the prosecutor] cannot sit up there and tell them why he did what he did. None of this is going to cause. All of it is preconditioning the jury." In response, the prosecutor argued "all I am doing is asking them if they can consider the testimony of an immunized witness. That's a hot button [issue]."
The court overruled defense counsel's objection "at th[at] point. It noted "the defense's concern [the bank robbery hypothetical] is . . . too close to the facts," but concluded the prosecutor's "questions were sophisticated enough as to tie it into the . . . instructions on the law . . . relat[ing] to aiding and abetting." But the court admonished the prosecutor "there has to be a . . . time . . . where maybe the point is made. . . ."
In front of the prospective jurors, the prosecutor asked "is there anybody . . . that couldn't evaluate the testimony of a witness who got immunity just like every other witness? [¶] Nobody would automatically say, 'Oh, that witness got immunity, I am going to disregard it'?" One prospective juror answered, "If I had to say does that immunity bear on their credibility, yes, it might. [¶] . . . [¶] And I can't . . . just throw that out. I can listen to their testimony, but I have to evaluate them on what I think their credibility is and that immunity might bear something on their credibility." The prosecutor responded, "Absolutely . . . . [¶] . . . [¶] I couldn't agree more. You have to consider everything about the witness that may bear on . . . credibility that comes to your attention. And nobody is suggesting that you ignore that. [¶] . . . [¶] . . . The question is, would automatically disregard it . . . [¶] . . . [¶] . . . just because they are immunized?" The prospective juror agreed he would not automatically reject the testimony of an immunized witness. The prosecutor then proceeded to another topic.
b. Analysis
Defendant claims the court erred in overruling defense counsel's objection to the line of questioning on immunized witnesses, arguing "the prosecutor tried to precondition the jurors into giving great weight to the testimony of the witnesses who were going to testify under a grant of use immunity." We disagree.
"'It is, of course, well settled that the examination of prospective jurors should not be used '"to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.'"' [Citations.]" (People v. Abilez (2007) 41 Cal.4th 472, 492493.) But "the court must permit questioning about legal doctrines that are material to the trial and controversial in the sense that they are likely to invoke strong feelings and resistance to their application. [Citations.]" (People v. Johnson (1989) 47 Cal.3d 1194, 1224-1225.) This would also include "questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds for a challenge for cause. [Citation.]" (Id. at p. 1224.)
"The trial court has considerable discretion to place reasonable limits on voir dire [citation] . . . ." (People v. Carasi, supra, 44 Cal.4th at p. 1286.) An abuse of that discretion occurs only "when [a] ruling 'fall[s] "outside the bounds of reason."' [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 714.)
The trial court did not commit an abuse of its discretion in denying defendant's objection to the prosecutor's questions concerning the credibility of witnesses testifying under a grant of immunity. This case involved testimony by two witnesses who were possibly defendant's and Johnson's accomplices and the prosecutor was properly concerned about the potential some jurors might automatically reject the expected testimony solely because Smith and Torres had been granted immunity.
We disagree with defendant's claim the prosecutor's questions on immunity "tr[ied] to persuade the future jurors" that "accomplices . . . are the best witnesses" and "an accomplice testif[ying] under use immunity" is "credible . . . because he does not have any incentive to lie." His first comment concerning who would make the best witness related "who . . . would have the most detailed information about th[e] bank robbery," not who would be the most credible witness. When another prospective juror noted that in "evaluating [a] witness'[s] truthfulness," "what's th[e witness's] angle" was a factor "to put into the equation," the prosecutor agreed, in part noting "[w]hat their motive is to tell the truth or not . . . ." When a third prospective juror acknowledged the fact a witness testified under a grant of immunity "might bear . . . on the[ witness's] credibility," the prosecutor stated, "Absolutely," and "I couldn't agree more. You have to consider everything about the witness that may bear on . . . credibility that comes to your attention. And nobody is suggesting that you ignore that."
Furthermore, defendant's claim the prosecutor "was . . . trying to bolster the credibility of the immunized accomplices just as he would do in summation" misstates the record. During closing argument, the prosecutor effectively accused Torres of lying when he was on the witness stand: "Vince Torres, well, there were certainly no shortage of colorful witnesses during this case. And I ask you, do you think it is conceivable that somebody could come in and ra[ise] their right hand and swear to tell the truth . . . and then lie to your face? I asked you if you thought that was conceivable, because I wanted reasonable people with common sense who know that just because you come into a courtroom doesn't mean you are not going to lie." As for Smith, the prosecutor argued "probably the most important information that Mr. Smith had to provide . . . during the course of his testimony[] was that he was present during a discussion between Vince Torres and [defendant] when they wanted to alibi . . . Johnson." But Smith's testimony was corroborated by Torregosa. In addition, not only did the court instruct the jury on evaluating the credibility of witnesses generally, as to Smith and Torres, it also gave CALCRIM No. 334 concerning accomplice witnesses and the need for corroboration if it determined either of them was an accomplice.
Contrary to defendant's claim, this case is factually distinguishable from our prior decision in People v. Castillo (2008) 168 Cal.App.4th 364. There we held a prosecutor committed misconduct when he sought to precondition the jury to return a guilty verdict by referring to both his experiences in prior cases involving similar crimes and the experiences of the family members in a case where the victims had died. (Id. at pp. 380, 386.) Here, the prosecutor was simply trying to ascertain whether any of the prospective jurors would automatically reject testimony from witnesses such as Smith and Torres solely because they were testifying under a grant of immunity.
Even assuming some of the prosecutor's comments crossed the line, since "errors or misconduct 'prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings'" it is, "as a general matter, . . . unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury's verdict in the case." (People v. Medina (1995) 11 Cal.4th 694, 741; People v. Seaton (2001) 26 Cal.4th 598, 636.)
We conclude defendant's preconditioning of the jury claim lacks merit.
5. The Instructions on Consciousness of Guilt
The trial court gave CALCRIM No. 362, instructing the jury that "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing that the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." It also gave CALCRIM No. 371, a similar instruction allowing the jury to infer consciousness of guilt "[i]f [either] the defendant tried to hide evidence or discourage someone from testifying against him," or "someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence" where "the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions."
Defendant now contends "the court erred in failing to instruct sua sponte that the instruction[s] on consciousness of guilt w[ere] applicable only if the jury made the preliminary finding that [his] deceptive conduct was to benefit himself rather than his best friend Johnson." We disagree.
He cites no authority for the proposition the trial court was required to modify the approved instructions absent a request to do so. In fact, the authority he does cite supports the opposite conclusion. Defendant relies on Evidence Code section 403, subdivision (c)(1). But it declares, "[i]f the court admits . . . proffered evidence under this section, the court: [¶] (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist."
In People v. Lewis (2001) 26 Cal.4th 334, a case cited by defendant, the Supreme Court rejected the claim the trial court had a sua sponte obligation to instruct the jury that a certain witness's "capacity to perceive and recollect was a preliminary fact that the jury must find before it may consider [the witness's] testimony. [Citation.]" (Id. at p. 361.) In so ruling, Lewis held Evidence Code section 403, subdivision (c)(1) means what is says: "On its own terms, this provision makes it discretionary for the trial court to give an instruction regarding a preliminary fact unless the party makes a request. Because defendant failed to do so, the trial court was not required to instruct the jury that [the witness's] capacity to perceive and recollect was a preliminary fact that had to be found before the jury could consider his testimony." (Id. at p. 362; see also People v. Carter (2003) 30 Cal.4th 1166, 1198 ["as the Evidence Code makes clear, courts are required to so instruct only at a defendant's request"].)
Other case law supports the approach employed in this case. In People v. Hannon (1977) 19 Cal.3d 588, disapproved on another ground in People v. Martinez (2000) 22 Cal.4th 750, 762, the Supreme Court declared: "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.]" (People v. Hannon, supra, 19 Cal.3d at p. 597.) But as we noted above in discussing the sufficiency of the evidence to support defendant's convictions, "there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference. [Citations.]" (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 102.) While "the determination of whether there is such evidence in the record is a matter which must be resolved by the trial court before such an instruction can be given to a jury" (People v. Hannon, supra, 19 Cal.3d at p. 598), "in giving the instruction, [the trial court] implicitly determined as a matter of law that the evidence of defendant's [false statements and efforts to suppress or fabricate evidence], if credited by the jury, could warrant an inference of consciousness of guilt . . ." (People v. Johnson (1992) 3 Cal.4th 1183, 1236).
In Johnson, the court instructed the jury with the predecessor to CALCRIM No. 371 that it could infer consciousness of guilt based on the defendant's refusal to participate in a lineup. In rejecting his attack on the use of this instruction, the Supreme Court ruled "[d]efendant does not suggest any way in which the jury might have been misled regarding the sort of evidence it could consider as indicating consciousness of guilt. If he believed the instruction required clarification, it was incumbent on him to request it. [Citation.] He did not do so. Reading the instructions as a whole, as the jury itself was directed to do [citations], we conclude they correctly guided the jury's consideration of the evidence." (People v. Johnson, supra, 3 Cal.4th at p. 1236.)
We conclude the same principles apply to this case. Consequently, we reject defendant's claim the trial court had an independent duty to instruct the jury on the preliminary fact that he made false statements or suppressed or fabricated evidence for his own benefit rather than to protect Johnson.
6. Sentencing Error
At sentencing, the trial court imposed two consecutive terms of life without the possibility of parole. The court based these sentences on its erroneous assumption "the jury . . . found [defendant] guilty of two counts of first degree murder [with] special circumstances . . . ."
Defendant claims the sentence of life without the possibility of parole for his mother's murder was erroneous because the jury found him guilty of second degree murder as to her. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1047-1048.)
Respondent concedes this argument is meritorious and requests we reduce defendant's sentence on count 2 to a term of 15 years to life and direct the trial court to prepare an amended abstract of judgment to that effect. We shall do so.
DISPOSITION
The convictions are affirmed. The sentence imposed on count 2 is modified to a term of 15-years-to-life in state prison. The superior court is directed to prepare an amended abstract of judgment reflecting this modification and forward a certified copy to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.