Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1231777. Marie Sovey Silveira, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
On July 10, 2004, appellant Cesar Melgoza Perez fatally shot Ruben Sanchez Neuman. Appellant was a member of the South Side Treces (SST), which is a set of the Surenos street gang. Neuman was a member of the Nortenos street gang. Appellant fled to Mexico. A few years later, he was apprehended and returned to the United States.
Jury trial was held in 2009. Appellant was found guilty of murder and assault by means of force likely to produce great bodily injury (counts 1 & 2). (Pen. Code, §§ 187, 245, subd. (a).) The jury also found the following special allegations attached to count 1 to be true: the murder was deliberate and premeditated, the murder was committed for the benefit of a criminal street gang, and appellant personally discharged a firearm during the murder proximately causing death. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).) The jury found the following special allegations attached to count 2 to be true: the assault was committed for the benefit of a criminal street gang, and appellant was armed during the assault. (§§ 186.22, subd. (b)(1), 12022, subd. (a).) Appellant was sentenced to 50 years to life imprisonment for count 1 plus a consecutive term of eight years for count 2.
Unless otherwise specified, all statutory references are to the Penal Code.
Appellant raises numerous evidentiary, instructional and sentencing challenges. We agree with appellant that the sentence imposed for count 2 must be stayed pursuant to section 654. The rest of appellant’s contentions lack merit. We will modify the judgment to stay imposition of the term imposed for count 2 and, as modified, affirm.
FACTS
I. Neuman’s Murder on July 10, 2004.
On the evening of July 10, 2004, a party was held in Modesto. The attendees included appellant, Luis Avina Meza, Sergio Felix, Raul Pena, Jose Ochoa, Alvaro Arellano, Rogelio Garcia and Francisco Gomez. All of them except Meza were active Surenos gang members; Meza associated with Surenos gang members.
Meza, Felix, Pena and Ochoa entered into plea bargains which obligated them to testify truthfully in this case.
Appellant brought a gun to the party. He had short hair and wore a black shirt.
Appellant argued with a man at the party. The owner of the house asked appellant to leave.
Ochoa remained at the party, but the rest of the group decided to go to another party in the City of Newman. They left in a pickup truck and a Jeep. Gomez drove the truck, with Meza as a passenger. Pena drove the Jeep; appellant, Felix, Arellano, and Garcia were passengers. Pena’s girlfriend, Teresa Marlen Vizcarra, accompanied the group. She rode in the Jeep.
On the way, both vehicles stopped. Pena, Gomez and appellant walked into an orchard. Pena saw appellant put something into the top of his pants. Pena asked appellant if he had a gun. Appellant replied affirmatively. Since Pena was on probation, he told appellant to ride in the truck. Appellant rode in the truck the rest of the way to Newman.
When the group reached Newman, both vehicles stopped at a liquor store. Pena went inside to buy some beer. When Pena exited the liquor store, Gomez told him that “a northerner guy went by” and “they said verbally words to each other.”
Around 10:00 p.m., the group left the liquor store. Meza was driving the truck with Gomez and appellant as passengers. The rest of the group was in the Jeep, which was driven by Pena. The Jeep followed the truck.
About two blocks away from the liquor store, Neuman was walking with his bicycle through an intersection. Neuman wore red pants. He was carrying a paper bag containing some beer.
Nortenos are associated with the color red and wear red clothing. Surenos are associated with the color blue and wear blue clothing.
Appellant told Meza to stop the truck. Meza stopped the truck in the middle of the street.
Appellant got out of the truck, ran up to Neuman and verbally confronted him. They argued and then exchanged punches.
Meza and Gomez got out of the truck and moved towards appellant and Neuman.
Pena stopped his Jeep in the middle of the intersection. Pena backed up the Jeep, accidentally hitting appellant and Neuman. The back window of the Jeep shattered. Appellant and Neuman fell to the ground. They both got up. Appellant angrily yelled at Pena.
Felix, Garcia and Arellano got out of the Jeep. Pena and his girlfriend stayed in the Jeep.
Neuman had beer in the brown paper bag. He threw a beer at Gomez, but it did not hit him.
Appellant asked Gomez if “he was going to get away with that.” Gomez said that “he needs some backup.” Meza walked towards Gomez.
Appellant punched Neuman in the chest and Neuman fell to the ground. Meza, Gomez, Felix, Arellano, Garcia and appellant stood in a semi-circle around Neuman, punching and kicking him.
A woman came out of a nearby house and screamed. Meza testified, “So that’s when everybody started running back to the cars.” Meza also said, “So the only one who stayed was [appellant].” Meza testified that he turned around and saw appellant pull out a gun from the waistband of his pants. He pointed the gun down at Neuman, who was lying on the ground. Meza testified appellant fired four or five shots at Neuman.
Felix testified that the group was still punching and kicking Neuman when appellant suddenly had a gun in his hand. Appellant started firing the gun at Neuman. Felix thought that appellant fired more than four or five shots. Felix testified that when appellant started shooting, he, Arellano and Garcia ran back to the Jeep. When Felix got into the Jeep, shots were still being fired.
Pena testified that he saw Arellano, Felix and Garcia getting back into the Jeep. At the same time, Pena saw five or six gun flashes. Then he saw appellant pointing a gun at the ground.
Meza got into the driver’s seat of the truck, and Gomez got into the passenger’s seat. Meza began to drive away. Appellant ran after the truck. He yelled for them to stop and wait for him. Meza stopped the truck. Appellant jumped into the back of the truck’s bed. The truck sped away. The rest of the group, including Arellano, left in the Jeep.
A person approached Neuman and comforted him.
A police officer arrived about 10:40 p.m. The officer saw what appeared to be bullet wounds on Neuman’s torso. Neuman died before he could be transported to the hospital.
Numerous bystanders and neighbors heard or saw some or all of the events culminating in Neuman’s murder. A police officer testified that someone told him that he/she witnessed Neuman’s murder. This person told the police officer that during the fight, one person started shooting down at the ground. This person heard four shots. This person described the shooter as a male who was about five feet 10 inches tall and weighed approximately 130 to 140 pounds. This person said the shooter wore a black shirt and had short hair. This person thought the shooter got into a Jeep. The Jeep drove away. Then this person saw two people run behind a pickup truck. The truck slowed and the two people got into the bed of the truck and the truck drove away.
Appellant has not challenged the sufficiency of the evidence and we have not discerned any error requiring us to assess the strength of the evidence supporting the guilty verdicts. Therefore, it is not necessary to set forth everyone’s statements to police officers and/or trial testimony. Since the murder and assault were gang-related, these people will not be named unless this information is necessary to resolve an appellate issue.
A bystander testified that he/she was inside his/her house. He/she heard a crash and then heard three or four gunshots. He/she went out to the front porch. He/she saw a man chasing after a pickup truck. The truck slowed and the man climbed into the truck’s bed. The man appeared to be “fairly young” and his height and weight was characterized as “medium.” In response to a question whether the man was bald, this person responded, “Yes. I didn’t see any hair. It was like a silhouette. I didn’t see any hair.”
Meza drove the truck to his house. During the drive, appellant opened the window separating the truck’s cabin from the bed. Appellant said that he had killed the man. Meza and Gomez were upset. They asked appellant why he killed the man. Appellant said the man had a gun. Meza and Gomez disagreed, telling appellant that the man did not have a gun. Then appellant “said he’s one man less for them.”
On the morning after the shooting, Pena told Ochoa that the back window of the Jeep was broken because “they jumped some guy” when they got to Newman. Pena said that he and his girlfriend stayed in the Jeep, and “[p]retty much everybody [else] jumped the guy.” Pena told Ocha that he was backing up the Jeep to get everyone back in the vehicle. The rear of the Jeep accidentally hit appellant “and that guy they were jumping.” Then Arellano “got in it and started kicking the guy. That’s when [appellant] pulled out a gun and shot the guy.”
II. Drive-by Shooting on July 12, 2004.
On the night of July 11, 2004, Jose Cruz was murdered during a drive-by shooting, which was possibly committed by Nortenos.
On the evening of July 12, 2004, two Honda Accords were reported stolen. It was stipulated that Pena stole one of the Hondas.
About 10:00 p.m., two Hondas matching the description of the stolen vehicles were used in a retaliatory drive-by shooting targeting Nortenos. Several prosecution witnesses were involved in this drive-by shooting.
Appellant was not charged in this case with any crime arising from the vehicular thefts or the July 12 drive-by shooting.
After this drive-by shooting, police officers searched a residence. Ochoa, Arellano and some other people were hiding in the garage. Pena was arrested nearby.
Three guns had been secreted under the steps of the residence’s back porch. One of the guns was a black semi-automatic.380-caliber Beretta handgun. The Beretta was loaded with an empty magazine; another empty magazine was found lying next to the Beretta. On the east side of the house, police officers found some ammunition, including some.380-caliber rounds.
Gunshot residue tests were performed on Pena, Gomez, Ochoa and Manuel Mendez after they were arrested in connection with the July 12, 2004, drive-by shooting. Gunshot residue particles were detected on Arellano’s, Gomez’s and Ochoa’s hands. No particles were detected on Pena’s hands.
III. Police Interviews.
During a police interview, Vizcarra “said that when they were all around the victim, kicking him and stomping him, she saw [appellant] remove a gun and point the gun down.” She turned her head away and heard three or more gunshots.
During police interviews, Pena and Felix identified appellant as the shooter. They both said appellant got into the pickup truck.
A sheriff’s deputy interviewed Arellano. Arellano told him that he wore a black shirt on the night Neuman was killed. Arellano said that when they got to Newman, appellant and Gomez argued with a man on a bicycle because the man threw something towards the truck. The man was a Norteno. Arellano said he and Felix got out of the Jeep. Arellano admitted that he was part of the group that kicked Neuman. Arellano said “he was already getting back to the Jeep and inside the Jeep when he heard those shots.” Arellano said he looked back and saw muzzle flashes. Gomez and appellant were standing by Neuman at that time. Arellano denied knowing who shot Neuman. Arellano said that he was not the shooter.
During a police interview, Ochoa related a conversation he had with Pena after Neuman’s death. Pena told Ochoa that he and all his friends were Surenos. “They just saw a Norteno riding a bike, ” so everyone except Pena and his girlfriend “went over there and started jumping him. And while they were jumping him, [appellant] pulled out a gun and just shot him.” Ochoa said he asked Pena why appellant shot the guy and Pena replied, “because, you know, he was wearing red.”
In a police interview, Meza admitted participating in the attack on Neuman. Meza said that they had kicked and punched Neuman for over a minute when a woman yelled at them to “knock it off.” At that point, they started returning to their vehicles. Meza said he was walking towards the truck with Gomez when appellant pulled out a handgun, pointed it in a downward motion and started firing. At that point, they all started running to the vehicles. Meza heard five or six shots. Meza said the attack on Neuman was unprovoked and occurred solely because of Neuman’s Norteno gang affiliation.
IV. Appellant’s Flight to Mexico.
On July 13, 2004, appellant went to the probation department for an unscheduled visit. He saw his probation officer and requested permission to accompany his mother to visit an aunt in Arizona. The probation officer granted appellant permission to go to Arizona until August 6, 2004. Appellant never contacted his probation officer again.
On July 14, 2004, police officers unsuccessfully attempted to locate appellant at his mother’s house in Modesto and at his father’s house in Salinas.
A bench warrant was issued on July 15, 2004.
On July 20, 2004, appellant’s mother told appellant’s probation officer that she did not know where appellant was.
In 2006, appellant was located in Mexico. He was living under a different name. He was arrested by federal agents. Several months later, he was returned to California in custody.
V. Physical Evidence and Autopsy Results.
A bicycle, a brown paper bag containing broken glass from a beer bottle, vehicle window glass, pieces of a beer bottle and some beer cans were found on the ground around the intersection where Neuman died.
Blood stains were found on the sidewalk. Four bullet impact marks were found to the left of the blood stain. Some.380-caliber cartridge casings and bullet slugs were found in the area of the crime scene. It was subsequently determined that the locations of the casings and bullet impact marks indicated the shooter stood upright and fired the gun downward.
Neuman’s shirt had seven bullet holes that “were all close to each other almost like in a half circle as well.” There was a shoe imprint on the back of the shirt. A fragment of a bullet was found in Neuman’s shirt.
A fully jacketed medium-caliber bullet was retrieved from Neuman’s body. It was determined that this bullet was fired by the Baretta.
It was stipulated that the Baretta was used in Neuman’s killing and used to return fire at the car committing the drive-by shooting that killed Jose Cruz.
It was also stipulated that a usable latent fingerprint was developed from the Baretta. Appellant was not the source of this fingerprint.
An autopsy was performed. Neuman’s cause of death was shock and hemorrhage due to multiple gunshot wounds. Neuman suffered seven gunshot wounds. Five bullets entered the right side of Newman’s back. These five gunshots were grouped together in a diameter of 12 to 15 inches. Both lungs, the liver, stomach, right adrenal gland, spinal column, diaphragm and aorta were perforated. Other bullets caused a grazing wound to Neuman’s abdomen and entered his upper right arm. Neuman also suffered blunt force injuries that were consistent with a fight.
The gunshot wounds to Neuman’s back and arm were similar looking and had a similar direction on the body, indicating the shots occurred in rapid succession. The shooter was standing on the right side of Neuman, and Neuman had his back or right side to the shooter when at least six of the shots were fired. The angles of the wounds were consistent with the shooter being above the victim or the victim being angled towards the shooter and the victim falling toward the shooter after being struck by the first three bullets. All of the shots were fired from a distance exceeding 18 inches.
VI. Gang Testimony.
Froilan Mariscal gave expert gang testimony. After explaining the origins of the Surenos and Nortono gangs, he identified the SST as a set of the Surenos gang. Mariscal opined that the Nortenos and Surenos are criminal street gangs. He testified about predicate offenses. Mariscal opined that appellant was an active Surenos gang member on the date of Neuman’s murder. Mariscal also opined that the assault and murder of Neuman were committed to benefit a criminal street gang.
VII. Appellant’s Defense Theory: Arellano Shot Neuman.
The defense called Daniel Britt. Britt testified that he met Felix while they were housed in the gang drop-out unit at Corcoran State Prison. Britt testified that Felix told him Arellano shot Neuman. Felix also said “that they had busted some 15-year-old youngster. He was in Mexico. But the Surenos said he was supposed to take the rap because he was the youngest one and would get less time.” Britt admitted that defense counsel and the defense investigator were the first people he told about these statements.
Britt also testified that in 2006, a Sureno gang member fatally shot Michael Arreola, who was a Norteno gang member. Britt identified a photograph of Arellano as the shooter. However, Britt later shared a jail cell with Arellano and was no longer certain that Arellano shot Arreola.
Felix testified that Britt approached him in the prison yard and harassed him with questions about Neuman’s murder. Felix said he falsely told Britt that Arellano shot Neuman so Britt would stop bothering him.
DISCUSSION
I. EVIDENTIARY CHALLENGES
A. The Court Did Not Err by Admitting the Accomplices’ Testimony.
The district attorney entered into written plea agreements with Pena, Felix, Meza and Ochoa and they testified as prosecution witnesses. Appellant contends the plea agreements were coercive and the trial court erred by refusing to exclude these witnesses. As will be explained, the plea agreements were not coercive. Admission of the contested testimony was proper and did not infringe appellant’s constitutional rights to a fair trial and due process of law.
1. Facts.
All four plea agreements provided, “It is my understanding that you wish to testify regarding the following: your personal knowledge and observations regarding the events and persons responsible for these crimes, and all other matters about which you know regarding these crimes.”
Then the plea agreements of Felix and Meza stated, “You have given a statement to [specified detective or investigator] on [specified date], which [you] have represented to be truthful.” Pena’s plea agreement stated, “You have given a statement to [specified police officers], which [you] have represented to be truthful.” This section of Ochoa’s plea agreement was worded slightly differently. It provided, “You have given a statement to [specified police officers], in which you answered questions and provided information about the murder and the drive-by shooting, and have represented to be truthful.”
Next, all four of the plea agreements essentially provided the witness agreed to testify truthfully to any and all hearings, trials and retrials on these matters.
Then all four plea agreements provided that if all of the following obligations were fulfilled, the person would receive a specified benefit from the district attorney. These obligations included the following: (1) testify truthfully at all hearings, trial, or retrials; (2) attend all necessary court appearances; and (3) stay available to law enforcement.
Next, each plea agreement set forth the benefit provided by the district attorney. The benefit differed for each individual.
Then each plea agreement stated it would be null and void if the enumerated conditions were not fulfilled or if it was discovered that the witness testified falsely. Further, the witness would be subject to prosecution for perjury.
At trial, defense counsel argued the plea agreements were coercive because they violated the Medina rule by essentially requiring Pena, Felix, Meza and Ochoa to testify consistently with their prior statements. (People v. Medina (1974) 41 Cal.App.3d 438 (Medina).) The court overruled this objection.
2. The Medina rule.
A plea agreement requiring only that the witness testify fully and truthfully is valid. But a plea agreement that expressly requires the witness to conform to an established script or one that is conditioned on a particular result is unfairly coercive. Admission of testimony that is the product of a coercive plea agreement infringes the defendant’s federal constitutional fair trial right. (People v. Jenkins (2000) 22 Cal.4th 900, 1010 (Jenkins); Medina, supra, 41 Cal.App.3d at pp. 449-456; People v. Green (1951) 102 Cal.App.2d 831, 838-839.) This principle is known as the Medina rule. (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 360 (Fields).)
In Medina, three witnesses testified under a grant of immunity subject to the condition that the witness did not materially or substantially change her testimony from the tape-recorded statement she gave to law enforcement officers. The appellate court acknowledged that a grant of immunity could be conditioned on a requirement that the witness testify fully and fairly to the facts, but held that when the terms of the immunity place the witness under a strong compulsion to testify in a particular fashion, the testimony is tainted and inadmissible. (Medina, supra, 41 Cal.App.3d at p. 456.)
In several cases, our Supreme Court has assessed plea agreements and determined that they were not coercive. In the process, it has impliedly determined that the Medina rule be restrictively interpreted. (See, e.g., People v. Reyes (2008) 165 Cal.App.4th 426, 434 (Reyes).)
First, in Fields, supra, 35 Cal.3d 329, our Supreme Court considered a claim of Medina error. The defendant’s sister, Gail Fields, entered into a plea bargain in which she agreed to testify as a prosecution witness. During cross-examination, Gail acknowledged “‘part of the deal’” was that she would testify “‘according to the statement that [she] gave the court reporter last night in the lockup.’” (Id. at p. 359.) Gail also affirmed that the last statement she gave to the police was truthful and she testified that she understood if she told a different story “‘the deal would fall through.’” (Ibid.) On appeal, the defendant argued Gail’s testimony should have been excluded because the plea agreement was coercive. The court determined that it did “not believe the Medina rule is applicable to the present case.” (Id. at p. 360.) It explained that “if the last statement [Gail] gave the police was the truth, then by agreeing to testify truthfully she has in fact agreed to testify in accord with that statement.” (Id. at pp. 360-361.) This did not “demonstrate either that the plea bargain required Gail Fields to testify in accord with her statement regardless of its truth, or that Gail so understood the agreement.” (Id. at p. 361.) Further:
“We recognize that a witness in Gail Fields’ position is under some compulsion to testify in accord with statements given to the police or the prosecution. The district attorney in the present case obviously believed that Gail’s last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. But despite this element of compulsion, it is clear, and the cases so hold [citation] that an agreement which requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain. We believe the requirements of due process, as explained in Medina, are met if the agreement thus permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.” (Fields, supra, 35 Cal.3d at p. 361.)
Next, in People v. Allen (1986) 42 Cal.3d 1222 (Allen), our Supreme Court rejected a contention that a plea agreement which is offered only after the witness gives a statement to the police violates the Medina rule. It reasoned that the plea agreement was conditioned only on the witness’s truthful and complete testimony. The fact that the witness may “have felt some compulsion to testify in accord with his earlier statement to the police does not, in itself, render the agreement invalid.” (Id. at p. 1253.) The witness was not placed under a strong compulsion to testify in a particular fashion simply because the plea agreement was offered only after he made a statement to the police. The witness was not told or led to believe that he would receive the benefit of the plea bargain only if his testimony conformed with his prior statement to the police. “Surely, law enforcement officials cannot be expected to offer plea agreements only to those individuals who have made no prior statements and expressed no views concerning the events in question. Such a rule would have the practical effect of prohibiting all plea agreements -- ‘a result neither required by reason nor compelled by precedent.’ [Citation.]” (Ibid.) It also found that requiring the witness to testify truthfully in all court proceedings was not coercive. (Id. at p. 1254.) “Plea bargains would be of little, if any, value to law enforcement officials if the agreements could be conditioned only on truthful testimony in a single proceeding. Such an agreement would leave the witness free to ‘sabotage’ the bargain by impeaching his own testimony at subsequent proceedings.” (Id. at p. 1254, fn. 8.)
Next, in People v. Garrison (1989) 47 Cal.3d 746 (Garrison), our Supreme Court upheld a plea agreement that is similar to the one before us. There, the district attorney orally described for the trial court portions of a plea bargain that were not recorded in the written plea agreement. The district attorney stated that the witness, Gary Roelle, had been administered a polygraph examination and the result indicated Roelle was being truthful. Then the prosecutor stated Roelle agreed to testify truthfully. Next, the district attorney said, “‘As a further part of this plea agreement … [Roelle] has already truthfully stated to the investigating detectives what happened in this case.’” (Id. at p. 768, italics omitted.) The court concluded this plea agreement did not violate the Medina rule. It explained:
“Roelle was never told that he had to testify to the same story he had already told police and he never agreed to so testify. Nor was he told that the deal would be off if his trial testimony differed from the prior story. It is apparent that the district attorney expected Roelle to testify to the same story at trial. It is a rare case indeed in which the prosecutor does not discuss the witness’s testimony with him beforehand and is assured that it is the truth. However, unless the bargain is expressly contingent on the witness sticking to a particular version, the principles of Medina, supra, 41 Cal.App.3d 438, and Green, supra, 102 Cal.App.3d 831, are not violated.” (Garrison, supra, 47 Cal.3d at p. 771.)
Next, in Jenkins, supra, 22 Cal.4th 900, our Supreme Court rejected a claim that four accomplices who entered into plea bargains requiring them to testify in the defendant’s case “received immunity upon condition they follow a prosecution script of their testimony.” (Id. at p. 1011.) The court focused on the accomplices’ trial testimony, rather than the wording of their plea agreements. It pointed out the accomplices were impeached with inconsistencies between their testimony and pretrial statements, “a circumstance that indicates that no script was followed.” (Ibid.) Further, the accomplices’ testimony was corroborated by other witnesses and physical evidence. (Id. at pp. 1011-1012.)
Finally, in People v. Boyer (2006) 38 Cal.4th 412, two witnesses were granted immunity on the condition they testify truthfully or be subject to prosecution for perjury. Their plea agreements provided the witnesses represented their testimony would be consistent with their prior recorded statements. Once again, our Supreme Court concluded the plea agreements did not violate the Medina rule. The plea agreements only obligated the witnesses to testify truthfully and nothing more. The portions of the agreements referencing the prior recorded statements merely evidenced an expectation that their testimony would be materially consistent with their prior recorded statements, and reflected an understanding that these statements were truthful. There was no condition in the plea agreement requiring the witnesses to reiterate the recorded statements regardless of their truth. (Id. at pp. 455-457.)
This line of authority was cogently examined by the Second District Court of Appeal in Reyes, supra, 165 Cal.App.4th 426. Reyes recognized, “‘The California Supreme Court has refused to extend Medina beyond the instance in which a plea agreement expressly requires consistency between accomplice testimony and a prior statement.’” (Id. at p. 434.) Thus, “[a] coordinate principle of the Supreme Court’s Medina jurisprudence is the understanding, … that although plea agreements calling for testimony naturally will exert some compulsion to testify satisfactorily, an agreement that binds the witness only to testify truthfully, and not in some prearranged fashion, cannot be deemed invalid.” (Id. at p. 435.)
In Reyes, supra, 165 Cal.App.4th 426, the appellate court applied this line of authority and upheld a plea agreement which contained a provision that if it was discovered the witness had “‘already not told us the truth about a material significant matter’” in a prior police interview, the witness would be in breach of the plea agreement. (Id. at p. 433.) It reasoned that “by its terms the interview provision did not qualify or restrict [the witness’s] agreement to testify truthfully, nor did it direct that he testify in conformity with his interview. Under our Supreme Court’s decisions on claims of ‘Medina error, ’ these are critical, dispositive distinctions.” (Id. at p. 434.) Reyes rejected appellant’s contention that this provision effectively coerced the witness to testify in accordance with the interview, as follows: “This claim is hypothetical and unverifiable. Practically, it is far more likely that [the witness] entered into the interview provision because he, like the prosecution believed his interview was truthful. If that is so, the provision posed no improper compulsion. [Citation.]” (Id. at p. 434.)
3. The plea agreements did not violate the Medina rule.
Having examined the relevant line of authority, we now examine appellant’s contention that the plea agreements in this case were unfairly coercive because they “impliedly specified that in each case the witness would be deprived of the benefit of his bargain if his testimony deviated from the extrajudicial statements he had given to police.”
In assessing this claim, “we review the record and reach an independent judgment whether the agreement under which the witnesses testified was coercive and whether defendant was deprived of a fair trial by the introduction of the testimony, keeping in mind that generally we resolve factual conflicts in favor of the judgment below. [Citation.]” (Jenkins, supra, 22 Cal.4th at pp. 1010-1011.)
Appellant’s argument is not convincing. Each of the plea agreements required the witness to testify truthfully in all proceedings. Also, they stated that each person had given a truthful statement to a specified police officer or investigator. Yet, there is no condition in the plea agreements requiring the testimony to be identical to the prior statement. Also, there is nothing in the plea agreements indicating that the plea agreement is expressly contingent on the witness sticking to a particular version or script. (Garrison, supra, 47 Cal.3d at p. 771.)
The district attorney clearly expected the witnesses to testify in a manner that is materially consistent with their prior statements to the law enforcement officials specified in the plea agreements. The witnesses had represented that those prior statements were truthful. But the reference to the witness’s prior police interview in the plea agreement did not restrict the contents of the witness’s testimony. This is a critical distinction. Unless the plea agreement specifically requires the witness to testify in conformity to a pre-arranged script, it does not violate the Medina rule. Where, as here, a plea agreement only refers to a prior statement to police and contains a representation that the prior statement is the truth, the plea agreement is not unfairly coercive. (Garrison, supra, 47 Cal.3d at p. 771; Boyer, supra, 38 Cal.4th at p. 457; Reyes, supra, 165 Cal.App.4th at p. 436.)
Further, examination of the testimony of the four witnesses dispels any concern that they were following a prosecution created script. They were impeached with inconsistencies between their trial testimony and pretrial statements. In his closing argument, defense counsel insisted that these witnesses should be disregarded because their stories kept changing. Also, the testimony of these four witnesses about the circumstances of Neuman’s murder is generally consistent with the physical evidence recovered from the crime scene, Vizcarra’s pretrial statement to the police and some of the observations by bystanders and neighbors.
For all of these reasons, we hold that the plea agreements were not coercive and appellant’s constitutional rights to a fair trial and due process of law were not infringed by admission of the contested testimony.
B. Appellant Did Not Preserve a Confrontation Clause Objection to the Gang Expert’s Testimony.
1. Facts.
The People filed a written motion in limine seeking admission of expert testimony to prove the elements of the gang enhancement.
Appellant also filed written motions in limine. They did not include a confrontation clause objection to admission of any category of evidence.
During the hearing on in limine motions, the court sought comments from counsel about admission of expert testimony to prove the gang enhancement. The following colloquy occurred:
“[THE PROSECUTOR]: The expert testimony then, I believe I laid it out in my brief as to the extent of the expert testimony on the various issues I need to prove up in the elements under [Penal Code section] 186.22. I listed them and enumerated them. Is the Court giving a tentative on that or -- I don’t want to argue something I don’t need to argue.
“[DEFENSE COUNSEL]: Let’s hold off on all this until I can brief what I am going to be objecting to. But more specifically, I will note right now that I believe that the way in which gang testimony was presented at the last trial I was at, and the way in which I’m anticipating they’re going to attempt to present it at this trial, by way of hearsay declarations and so on and so forth as, quote, ‘supporting the gang criteria, ’ is a violation of my client’s right of confrontation of Crawford, and I will brief that.
“THE COURT: Well, since I have no idea what your other trial was, and I don’t know if you mean the way that this trial was conducted or some other trial in front of another judge, I don’t have any way of evaluating that.
“[DEFENSE COUNSEL]: I understand that, your Honor. That’s why I’ve asked to brief it.…”
Defense counsel did not subsequently file a brief or other written document containing a confrontation clause objection to expert gang testimony. At trial, defense counsel did not object to any aspect of the gang expert’s testimony on the ground that it violated appellant’s rights under the confrontation clause.
2. Appellant forfeited this issue.
Appellant contends the gang expert improperly “related what he had learned from statements of non-testifying declarants as well as anonymous hearsay declarants.” Citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), appellant argues this alleged evidentiary error infringed his federal constitutional confrontation right. Respondent persuasively replies that this issue was not preserved for appellate review.
Numerous cases currently are pending in our Supreme Court concerning the right of confrontation under the Sixth Amendment and the effect of Melendez-Diaz on California jurisprudence. These include: People v. Dungo, review granted December 2, 2009, S176886, formerly published at 176 Cal.App.4th 1388; People v. Gutierrez, review granted December 2, 2009, S176620, formerly published at 177 Cal.App.4th 654; People v. Rutterschmidt, review granted December 2, 2009, S176213, formerly published at 176 Cal.App.4th 1047; People v. Lopez, review granted December 2, 2009, S177046, formerly published at 177 Cal.App.4th 202; People v. Anunciation, review granted March 18, 2010, S179423; People v. Schwartz, review granted March 20, 2010, S180445; People v. Benitez, review granted May 12, 2010, S181137; and People v. Bowman, review granted June 9, 2010, S182172, previously published at 182 Cal.App.4th 1616.
“‘No procedural principle is more familiar to [the United States Supreme Court] than that a constitutional right, ’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” (United States v. Olano (1993) 507 U.S. 725, 731.)
This principle is codified in the California Evidence Code:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).)
“Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 854.)
The contemporaneous objection rule applies to claims of state and federal constitutional error. (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.) A claim that the introduction of evidence violated the defendant’s rights under the confrontation clause must be presented to the trial court for decision or it is forfeited on direct appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Chaney (2007) 148 Cal.App.4th 772, 777-780 (Chaney).)
In Melendez-Diaz, the United States Supreme Court wrote, “The defendant always has the burden of raising his Confrontation Clause objection ….” (Melendez-Diaz, supra, 557 U.S. at p. __ [129 S.Ct. at p. 2541].) Furthermore, “The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.” (Id. at p. __ [129 S.Ct. at p. 2534, fn. 3].)
“… Over the years, cases have used the word [waiver] loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. ‘[T]he terms “waiver” and “forfeiture” have long been used interchangeably. The United States Supreme Court recently observed, however: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Citations.]” [Citation.]’ [Citation.]” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371; Chaney, supra, 148 Cal.App.4th at p. 777, fn. 2.)
Appellant asserts the colloquy that occurred during the in limine hearing was sufficient to preserve the point for appeal. We are not convinced.
In People v. Morris (1991) 53 Cal.3d 152 (Morris), our Supreme Court held:
“In summary, we hold that a motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal.” (Morris, supra, 53 Cal.3d at p. 190.)
Defense counsel’s remarks during the in limine hearing did not satisfy any of the Morris requirements. Defense counsel did not explain the basis of his objection to the gang expert’s testimony or identify the specific aspect of the expected testimony that he found objectionable. He did not assert a confrontation clause objection with sufficient specificity so the trial court could have understood and ruled on it. When defense counsel was asked to explain his references to a prior trial, defense counsel simply stated that he wanted to file a written brief on the point. Defense counsel failed to do so. Thus, a confrontation clause claim was not presented to the trial court for decision prior to the commencement of trial. Consequently, a proper objection satisfying Evidence Code section 353 was required during trial to preserve the point for appellate review. (Morris, supra, 53 Cal.3d at p. 190.) Since an objection was not lodged on this ground for decision at any point below, appellant forfeited direct appellate review of this point. (Melendez-Diaz, supra, 557 U.S. at pp. __ [129 S.Ct. at pp. 2534, fn. 3 & 2541].)
In Reid v. Google, Inc. (2010) 50 Cal.4th 512, our Supreme Court recently held that a party’s written objection to evidence made in connection with a summary judgment motion was sufficient to preserve the point for appellate review, even though the trial court had refused to rule on the evidentiary objection and the objection was not renewed at trial. We specifically note that it was not the absence of a ruling by the trial court that caused the forfeiture. Rather, forfeiture resulted from appellant’s failure to present a confrontation clause objection for decision at any point below.
C. Appellant was not Prejudiced by Admission of the Autopsy Report and Dr. Lawrence’s Testimony.
1. Facts.
In 2004, Neuman’s body was autopsied by Dr. Gregory Schmunk, a pathologist. Schmunk was employed by Delta Pathology (Delta), a business that performs autopsies for the Stanislaus County Coroner’s Office. Dr. Schmunk photographed Neuman’s body and prepared an autopsy report.
At trial, the prosecution proffered the testimony of Dr. Robert Lawrence, a pathologist employed by Delta. Dr. Lawrence was the custodian of autopsy reports prepared by Delta employees. Dr. Lawrence’s testimony was based, in part, on the autopsy report. He used the autopsy report and photographs to create diagrams of the gunshot wounds on Neuman’s body. The prosecution proffered the autopsy report as People’s exhibit 8.
Defense counsel objected to admission of Dr. Lawrence’s testimony and the autopsy report on the basis of the confrontation clause because Dr. Lawrence had not performed the autopsy or written the autopsy report. The objection was overruled.
2. Admission of this evidence was harmless beyond a reasonable doubt.
Appellant argues admission of the autopsy report and Dr. Lawrence’s testimony summarizing the contents of the autopsy reports was an evidentiary error that prejudicially infringed his federal constitutional confrontation right. In relevant part, respondent contends the alleged error is harmless. Having examined the entirety of the record, we agree with respondent.
In one of the cases currently pending before our Supreme Court, the appellate court concluded that testimony of a pathologist about the manner and cause of the victim’s death based on an autopsy report prepared by another pathologist was inadmissible. (People v. Dungo, review granted Dec. 2, 2009, S176886, formerly published at 176 Cal.App.4th 1388.)
Confrontation clause violations are subject to analysis for prejudice under the harmless beyond a reasonable doubt standard of review. Delaware v. Van Arsdall (1986) 475 U.S. 673 (Van Arsdall), explains that in determining whether there was a confrontation clause violation, the focus of the inquiry “must be on the particular witness, not on the outcome of the entire trial.” (Id. at p. 680.) Yet, when assessing if the violation was prejudicial, one examines the entire record and considers many factors:
“ … The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. [Citations.]” (Van Arsdall, supra, 475 U.S. at p. 684.)
Having examined the entire record, we conclude the admission of the autopsy report and Dr. Lawrence’s testimony about the autopsy results was harmless beyond a reasonable doubt.
At the outset, it is important to recognize that the cause and manner of Neuman’s death was essentially undisputed at trial. The primary dispute centered on the identity of the shooter. During defense counsel’s closing argument, he essentially conceded that a dispute occurred and one of the people involved in it shot Neuman multiple times. Defense counsel focused on raising a reasonable doubt about the identity of the shooter, and suggested that Arellano was the real culprit.
Further, there was independent percipient witness testimony about the autopsy, which was subject to cross-examination by defense counsel. A Stanislaus County Sheriff’s Department deputy testified that he and another police officer were present during the autopsy of Neuman’s body. He observed numerous bullet holes in Neuman’s body, including right arm, right and left side, and stomach. Also, there were abrasions on Neuman’s right knuckles and forehead, and glass in his forehead and left elbow. The deputy testified Dr. Schmunk removed a single bullet from Neuman’s chest cavity. The deputy asked the other police officer to take photographs of Neuman’s body. She photographed the injuries to Neuman’s hands, the bullet removed from Neuman’s chest, glass removed from Neuman’s left elbow and forehead and Neuman’s clothing.
Also, the contents of Dr. Lawrence’s testimony and the autopsy report were largely cumulative to physical evidence recovered at the crime scene and percipient witness testimony. Neuman’s shirt had seven bullets holes and a bullet fragment was found in it. A great deal of ballistic and blood evidence was recovered from the crime scene, including cartridge cases and bullet impact marks.
A Newman Police Department officer testified that Neuman was lying face down on the sidewalk. There were bullet wounds and blood on Neuman’s right side, back and chest. Shortly thereafter, the officer was advised that Neuman had died at the scene. All of this evidence corroborated the contents of the autopsy report and Dr. Lawrence’s testimony about Neuman’s injuries, the directional path of the bullets and the cause of Neuman’s death.
Appellant did not suggest any new evidence that could only have been elicited if Dr. Schmunk had been cross-examined. Rather, he contends he was prejudiced because the prosecutor referenced the autopsy results and photos in his closing arguments. This is not convincing. The autopsy results were largely cumulative to the testimony of other witnesses and the physical evidence recovered from the crime scene. Therefore, we conclude the admission of the autopsy report and Dr. Lawrence’s testimony was not prejudicial.
II. INSTRUCTIONAL ISSUES
A. The Jury was Correctly Instructed on Accomplice Corroboration.
The court instructed the jury on accomplice testimony with CALCRIM Nos. 301, 318, and 335.
As given, CALCRIM No. 301 provided:
“Except for the testimony of Raul Pena, Sergio Felix, Luis Avina Meza, and the out of court statements of Alvaro Arellano, which require supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
CALCRIM No. 318 informed the jurors:
“You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true.”
CALCRIM No. 335 instructed the jurors that Pena, Felix, Meza and Arellano were accomplices to the charged offenses. Then it stated:
“You may not convict the defendant of [the charged offenses], or any lesser crime, based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s statement or testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s statement or testimony [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commissions of the crimes.”
Appellant argues that while CALCRIM Nos. 318 and 335 are generally correct, the instructions were misleading in this case because there were numerous accomplices who all gave statements to the police. In appellant’s view, CALCRIM Nos. 318 and 335 incorrectly permitted the jury to find “that the testimony of one accomplice was corroborated by the statements of another accomplice or that the testimony of one accomplice was corroborated by the statements of that same accomplice.” Based on this premise, appellant asserts the court had a sua sponte obligation to modify these instructions and inform the jury that the required corroboration of an accomplice’s testimony must be both independent of any prior out-of-court statements that were made by the accomplice and independent of both the testimony and prior out-of-court statements that were made by the other accomplices. As we will explain, this claim of instructional error is both procedurally defective and substantively meritless.
Procedurally, appellant forfeited the right to raise this issue on appeal because he did not seek modification of the instructions in the trial court or submit a legally correct pinpoint instruction. Section 1259 provides that we may review “any instruction given, refused or modified, even though no objection was made thereto” in the trial court. (§ 1259.) Even so, a defendant may not complain on appeal that a legally correct jury instruction was too general or incomplete unless he or she sought clarifying or amplifying language in the trial court. (People v. Tuggles (2009) 179 Cal.App.4th 339, 364-365 (Tuggles); People v. Cleveland (2004) 32 Cal.4th 704, 750; People v. Hart (1999) 20 Cal.4th 546, 622.)
Essentially, appellant is arguing that due to the unusually large number of accomplices who all made pretrial statements, the court had a sua sponte duty to modify the otherwise correct instructions in a way that avoided the potentially problematic interpretation he identified in his briefing. Appellant reasons that such an instruction fell within the ambit of general principles of law closely and openly connected to the facts and necessary for the jury’s understanding of the case. We disagree.
A trial court is not required to instruct sua sponte on specific points developed at trial. (People v. Daya (1994) 29 Cal.App.4th 697, 714.) If appellant was concerned that under the unique facts of this case, the jury needed additional instruction on accomplice corroboration, he was required to submit a special instruction addressing this point. “[D]efendant is not entitled to remain mute at trial and scream foul on appeal for the court’s failure to expand, modify and refine standardized jury instructions.” (Ibid.)
Tuggles, supra, 179 Cal.App.4th 339 is directly on point. There, CALCRIM Nos. 318 and 335 were given without objection or request for modification. On appeal, Tuggles argued that when these instructions were read together, they “erroneously instructed the jury that an accomplice’s testimony at trial could be corroborated by the same accomplice’s prior out-of-court statements.” (Id. at p. 363, fn. omitted.) The appellate court concluded the point was both forfeited and lacked merit. With respect to forfeiture, the court reasoned:
“The gravamen of Tuggle’s argument is a claim of improper ‘completion of the instruction by the trial court.’ To preserve the issue, Tuggles was required to request the additional language needed to complete the jury instructions. [Citation.] The lack of such a request by Tuggles forfeited the issue for review. [Citation.]” (Tuggles, supra, 179 Cal.App.4th at pp. 364-365.)
The appellate court then considered the substantive point in an ineffective assistance of counsel context. It decided no reasonable juror would have understood CALCRIM Nos. 318 and 335 as permitting the witness to corroborate his own testimony. (Tuggles, supra, 179 Cal.App.4th at p. 365.) Use of the word “independent” in CALCRIM No. 335 to describe the sort of evidence that could serve as corroboration negates the defendant’s assertion that the instruction allowed the accomplice to corroborate his own testimony. Further, even if CALCRIM Nos. 318 and 335 were susceptible to this interpretation, “any mistaken impression was dispelled by the court’s giving of CALCRIM No. 301.” (Ibid.) “This instruction informed the jury that [the witness’s] status as an accomplice disallowed his testimony to suffice for conviction without additional evidence in support.” (Id. at p. 366.) With the additional consideration of CALCRIM No. 301, “no reasonable jury could have understood the instructions to allow an accomplice to corroborate himself. [Citations.]” (Id. at p. 366.)
Appellant argues Tuggles is distinguishable because this case involves multiple accomplices and the prosecutor implied in his closing arguments that an accomplice’s testimony could be corroborated by his pretrial statement and/or the testimony of other accomplices.
Neither of these factual differences pertains to the issue of forfeiture. We find Tuggles to be persuasive on that point. If appellant wanted additional instruction on accomplice corroboration or modification of generally correct instructions, it was incumbent on him to request it. Also, if appellant thought the prosecutor was misstating the law during closing arguments, he was affirmatively obligated to assert a timely objection and request admonishment. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Since appellant did not request modification of CALCRIM Nos. 318 or 335, did not offer a pinpoint instruction concerning multiple accomplices, and did not object to the prosecutor’s closing argument on this basis, we conclude the point was not preserved for direct appellate review. (Tuggles, supra, 179 Cal.App.4th at pp. 364-365.)
Furthermore, we agree with the reasoning in Tuggles that inclusion of CALCRIM No. 301 in the jury charge precluded the erroneous interpretation urged by appellant. The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (Estelle v. McGuire (1991) 502 U.S. 62, 72 (Estelle); see, e.g., People v. Solomon (2010) 49 Cal.4th 792, 824; People v. Jones (2003) 108 Cal.App.4th 455, 468.) We must review jury instructions based on how a reasonable juror would construe them. (People v. Clair (1992) 2 Cal.4th 629, 688.) The test on appeal is “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle, supra, 502 U.S. at p. 72.) Reasonable jurors would not have construed the language of CALCRIM Nos. 318 and 335 in the manner suggested by appellant. Since it is not reasonably likely that the jury applied the instructions in a way that violates the state or federal constitutions, this claim of evidentiary error fails. (Tuggles, supra, 179 Cal.App.4th at pp. 365-366.)
B. Inclusion of a Flight Instruction in the Jury Charge was Proper.
1. Facts.
The prosecution presented evidence that on July 13, 2004, appellant spoke with his parole officer and told him he wanted to go with his mother to visit an aunt in Arizona. Based on this representation, the parole officer gave appellant permission to leave California from July 16, 2004 to August 6, 2004. Appellant agreed to contact his parole officer on August 6, 2004. Appellant did not go to Arizona with his mother and never contacted his parole officer again.
On July 14, 2004, the police attempted to locate appellant at his mother’s residence in Modesto and his father’s residence in Salinas. On July 15, 2004, a bench warrant was issued for appellant’s arrest. On July 20, 2004, appellant’s mother told the police that she did not know where appellant was.
In September 2006, police officers confirmed that appellant was living in Uruapan, Mexico. Federal agents arrested appellant, who was using a different name. Appellant was returned to the United States in custody.
Over defense objection, the court instructed on flight by giving a modified version of CALCRIM No. 372. The court omitted the portion of CALCRIM No. 372 concerning flight after the defendant has been accused of committing the charged crimes. As given, the instruction provided:
“If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
2. The flight instruction was supported by the evidence.
Appellant argues the flight instruction should not have been given because he did not leave California immediately after the murder. Also, he contends there is no proof of guilty knowledge. Appellant asserts that when he left California, he was “wholly unaware that he [was] under suspicion of the charged crime[s].” Neither of these contentions is persuasive.
“‘[A] flight instruction is proper whenever evidence of the circumstances of defendant’s departure from the crime scene or his usual environs, … logically permits an inference that his movement was motivated by guilty knowledge.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 470.) Flight requires a purpose to avoid being observed or arrested. A flight instruction does not assume that flight was established. It leaves this factual determination and its significance to the jury. The facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt. (People v. Mason (1991) 52 Cal.3d 909, 941 (Mason).)
Our Supreme Court has rejected any “inflexible rules about the required proximity between crime and flight.” (Mason, supra, 52 Cal.3d at p. 941 [four-week delay]; see also, e.g., People v. Santo (1954) 43 Cal.2d 319, 329-330 [one-month delay].) There is not a “defined temporal period within which the flight must be commenced.” (People v. Carter (2005) 36 Cal.4th 1114, 1182 [delay of a few days].) Given the circumstances of this case, appellant’s sudden departure from the country occurred in sufficient proximity to the murder to allow a flight instruction. Appellant killed Neuman on the night of July 10, 2004. On or about July 13, 2004, appellant fled the area. “Common sense … suggests that a guilty person does not lose the desire to avoid apprehension for offenses as grave as” murder after only a few days. (Mason, supra, 52 Cal.3d at p. 941.)
Also, the jury could reasonably infer that appellant’s flight to Mexico was motivated by guilty knowledge and appellant’s purpose was to avoid being questioned, detained or arrested for shooting Neuman. Soon after appellant killed Neuman, he lied to his parole officer to obtain permission to leave the state for two weeks. It reasonably can be inferred that appellant made up the story about visiting an aunt so the probation officer would not know that he had fled the country and alert authorities when he failed to report to the probation officer for their regularly scheduled meetings.
Accordingly, we conclude inclusion of the flight instruction in the jury charge was proper and did not infringe appellant’s constitutional rights to a fair trial and due process of law.
C. The Trial Court did not Err by Refusing the Defense’s Pinpoint Instruction on Third Party Culpability.
1. Facts.
Defense counsel proffered the following pinpoint instruction on third party culpability:
“The defendant has introduced evidence that a third party committed the charged offenses. The defendant is not required to establish the guilt of a third person with that degree of certainty requisite to sustain a conviction of the latter. Such evidence may be considered by you to determine if the prosecution has met its burden of proving it was the defendant who committed the crime. If the [P]eople have not met this burden, you must find that the defendant is not guilty.”
The court refused to give this instruction. It explained, “I think the way that the proposed instruction has been prepared, it’s got a couple of different references to the standard and the burden of proof, which I think is confusing, the way that it’s written.” The court stated it would give CALCRIM No. 373 instead. Defense counsel replied that he thought CALCRIM No. 373 was appropriate, but he also wanted the pinpoint instruction to be given. The court refused defense counsel’s request for both instruction.
CALCRIM No. 373 was included in the jury charge. It provides:
“The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged. [¶] This instruction does not apply to the testimony of Raul Pena, Sergio Felix, Luis Alvina Meza and Alvaro Arellano.”
The court gave CALCRIM No. 220 to instruct on the burden of proof beyond a reasonable doubt and the presumption of innocence.
2. The pinpoint instruction was confusing.
Appellant contends there was substantial evidence supporting an instruction on third party culpability and, therefore, the trial court prejudicially infringed his federal constitutional due process and fair trial rights by refusing the defense’s pinpoint instruction. We are not convinced.
“A trial court must instruct the jury, even without a request, on all general principles of law that are ‘“closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.” [Citation.] In addition, “a defendant has a right to an instruction that pinpoints the theory of the defense.…”’ [Citation.] The court may, however, ‘properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1021 (Hovarter).)
We agree with the trial court that the defense’s proffered pinpoint instruction on third party culpability was confusing. The following sentence contains several references to an undefined burden of proof and is filled with legal jargon that is virtually incomprehensible to laypersons: “The defendant is not required to establish the guilt of a third person with that degree of certainty requisite to sustain a conviction of the latter.” It is likely that this sentence would have confused the jury. Therefore, the trial court did not err by refusing to give this instruction. (Hovarter, supra, 44 Cal.4th at p. 1022; People v. Earp (1999) 20 Cal.4th 826, 886-887.)
3. The absence of instruction on third party culpability was not prejudicial.
In Earp, supra, 20 Cal.4th 826, our Supreme Court found the defendant was not prejudiced by the refusal to give a proffered pinpoint instruction on third party culpability. It reasoned:
“… Even assuming that this proposed instruction accurately pinpointed the defense theory, defendant suffered no prejudice from the trial court’s refusal to give it. The jury was instructed under CALJIC No. 2.90 that the prosecution had to prove defendant’s guilt beyond a reasonable doubt, and the jury knew from defense counsel’s argument the defense theory that Dennis Morgan, not defendant, had committed the crimes. Under these circumstances, it is not reasonably probable that had the jury been given defendant’s proposed pinpoint instruction, it would have come to any different conclusion in this case. [Citation.]” (Earp, supra, 20 Cal.4th at p. 887.)
Likewise, in this case the absence of a special instruction on third party culpability was harmless. The jury was instructed on the presumption of innocence, the prosecutor’s burden of proof beyond a reasonable doubt and on the possible involvement of uncharged third parties in this case. Defense counsel’s closing argument emphasized the defense theory of the case, i.e., Arellano shot Neuman and the prosecution failed to meet its burden of proving beyond a reasonable doubt that appellant was the shooter. Considered in its entirety, the jury charge in this case adequately apprised the jurors that a third party culpability defense could give rise to a reasonable doubt as to appellant’s guilt. It is not reasonably probable that the jury would have found appellant not guilty of murder if the trial court had, sua sponte, crafted and given a special instruction on third party culpability. (Earp, supra, 20 Cal.4th at p. 887.)
III. SENTENCING ISSUES
Appellant was sentenced on count 1 to an aggregate indeterminate term of 50 years to life (25 years for the murder, plus a consecutive term of 25 years for the firearm use). On count 2, appellant was sentenced to a consecutive aggregate term of eight years (the mid-term of three years for the assault plus a consecutive term of five years for the gang enhancement; a one-year term for the firearm enhancement was imposed and stayed). A $60 fee pursuant to Government Code section 70373 was imposed.
A. Section 654 Bars Imposition of Separate Punishment for Counts 1 and 2.
1. Facts.
Relying on People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen), the trial court impliedly concluded section 654 did not bar imposition of separate punishment for the assault and murder.
At the outset of the sentencing hearing, the court made opening comments indicating that the court was considering whether it should impose consecutive time on count 2. In relevant part, the court stated:
“The actual timing of the events, however, based upon the evidence, is that there was a crime of assault. And my recollection of that evidence is, after the assault was completed, Mr. Perez decided to then shoot the victim and to murder him, that being a separate and distinct crime.”
The court cited Nguyen and continued:
“[¶] … But I considered whether, in fact, the shooting of Joey Neuman in this case would fall within that description of gratuitous and unnecessary violence on an unresisting victim to make it a separate crime, warranting separate punishment, because it is a separate conviction and you can have separate convictions.”
The court heard arguments of counsel concerning the applicability of section 654.
Defense counsel argued that Nguyen was inapplicable because Neuman was not robbed. He asserted section 654 applied because the murder was “part and parcel to a continuing assault on one person.”
The prosecutor argued section 654 did not apply because the assault was based on separate and distinct conduct from the murder. Appellant drew his weapon and shot Neuman after the fight had stopped and the other participants were leaving. Also, “the intent to assault is clearly distinctive from the intent to kill.” The prosecutor observed, “The real issue in that will come down to whether or not there’s a period between the assault and when the gun comes out that was sufficient for him to formulate a separate intent. I believe there was.”
In its sentencing memorandum, the prosecutor wrote that the sentences would run concurrent “by way of [the] Merger Doctrine.” The prosecutor reversed this position at the sentencing hearing. The merger doctrine precludes bootstrapping felonious assaults into murder. (People v. Chun (2009) 45 Cal.4th 1172, 1200-1201; People v. Ireland (1969) 70 Cal.2d 522, 539.) It is not relevant in this case because felony murder was not one of the prosecution’s theories.
The court sentenced appellant to “the maximum punishment by law.” It did not specifically address the section 654 issue. However, it made the following comments:
“[¶] From my point of view, sitting on the bench and listening to this, I have to comment, though, that this was an absolutely senseless crime.… [¶] There was nothing about any of the evidence I heard that Joey Neuman was doing anything, except walking his bike down the street, being a peaceful, law-abiding citizen wearing red pants. [¶] And for you, Mr. Perez, it was through your actions and through your thirst for violence and your gang lifestyle that caused this to be a murder. It wasn’t enough to get out of the car and beat somebody up. It wasn’t enough to get out of the car and call other people to come and beat up a man who was alone with no weapons. None of these things were enough to satisfy you. In fact, you needed, for your own thirst for violence, to kill this man by pulling out the gun and shooting him after he had already been badly beaten and on the ground.”
2. Section 654 applies in this case.
Appellant argues Nguyen, supra, 204 Cal.App.3d 181 is factually inopposite and section 654 applies in this case because the assault and murder were an indivisible course of conduct with a single intent and objective. We have carefully assessed the record and reluctantly agree the evidence does not support a finding that appellant possessed two different intents and objectives during the attack that culminated in Neuman’s murder.
“Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the ‘intent and objective’ of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
Whether the defendant possessed multiple objectives and intents within the meaning of section 654 is a factual question. We will uphold a trial court’s explicit or implicit finding if it is supported by substantial evidence. The trial court’s determination is viewed in the light most favorable to the respondent and we presume the existence of every fact that could reasonably be deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In Nguyen, supra, 204 Cal.App.3d 181, the defendant’s accomplice took a market clerk into a bathroom, removed his money from his pockets and forced him to lie down on the floor. The defendant opened the cash register and shouted a Vietnamese battle cry. The accomplice kicked the clerk and shot him in the back. The clerk survived. The defendant was convicted of robbery and attempted murder as an aider and abettor. The appellate court upheld imposition of separate punishment for both crimes. It reasoned that the shooting constituted an act of gratuitous violence against a helpless and unresisting victim that was sufficiently divisible from the robbery to justify multiple punishments. (Id. at pp. 189-193.)
Unlike Nguyen, the record in this case does not contain substantial evidence from which it can be reasonably determined that appellant harbored two independent intents and objectives when he committed the assault and the murder. Appellant was armed when he got out of the truck and initiated the unprovoked attack on Neuman. The murder immediately followed the assault; there was, at most, a brief interval between the last blow and the first shot. Appellant did not make any statements indicating that he initially did not intend to kill Neuman but changed his mind and formed the intent to kill after the assault was complete. Appellant did not rob Neuman. Appellant’s undeniable “thirst for violence” was evident during both the assault and the shooting.
Since we cannot reasonably find that appellant possessed two different intents and objectives during the attack that culminated in Neuman’s murder, section 654 prohibits imposition of separate punishment for the assault and murder. The judgment must be modified to stay the sentence on count 2.
B. The Sentence is not Cruel and/or Unusual Punishment.
Appellant was 16 years old when he murdered Neuman. Defense counsel filed a written objection to a sentence of 50 years to life for count 1 on the ground that such a sentence violates the federal constitutional prohibition against cruel and unusual punishment. There is no indication in the record that the trial court ruled on this objection. Appellant renews this argument on appeal.
Relying solely on recent jurisprudence from the United States Supreme Court concerning punishment of juvenile defendants, Roper v. Simmons (2005) 543 U.S. 551 (Roper), and Graham v. Florida (2010) __ U.S. __ [130 S.Ct. 2011] (Graham), appellant argues his sentence constitutes cruel and/or unusual punishment under the California and Federal Constitutions.
Roper held that the Eighth Amendment to the United States Constitution prohibits imposition of the death penalty for crimes committed when the offender was under the age of 18. Juvenile offenders could not reliably be classified among the worst offenders because they are less mature and responsible than adults and act more recklessly. They are more susceptible to negative influences and pressures. A juvenile’s character is not as well formed as an adult’s character. (Roper, supra, 543 U.S. at pp. 568-575.)
Roper is not applicable. This is not a death penalty case; California does not allow the death penalty for juveniles. (§ 190.5, subd. (a).) “[T]he penalty of death is different in kind from any other punishment imposed under our system of criminal justice.” (Gregg v. Georgia (1976) 428 U.S. 153, 188.)
In Graham, a divided Court held that a sentence of life without possibility of parole for any juvenile offender who did not commit a homicide is unconstitutional as cruel and unusual under the Eighth Amendment. (Graham, supra, 130 S.Ct. at p. 2034.)
Appellant is not similarly situated to the juvenile offender in Graham. Appellant is a murderer. Just as the death penalty is a unique class of punishment, murder is a unique class of crime. A murderer is not comparable to any other type of offender. Also, appellant’s sentence of 50 years to life is not functionally equivalent to a sentence of life imprisonment without the possibility of parole.
Neither Roper nor Graham stands for the proposition that a sentence of 50 years to life is unconstitutionally cruel and/or unusual when applied to a juvenile who is convicted of murder. Therefore, this sentencing challenge fails.
C. Government Code section 70373 was Properly Assessed.
Government Code section 70373 was enacted in 2008 and became effective on January 1, 2009. (Gov. Code, § 70373, added by Stats. 2008, ch. 311, § 6.5.) In pertinent part, this code section provides:
“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” (Gov. Code, § 70373, subd. (a)(1).)
The court imposed a $60 assessment pursuant to Government Code section 70373. Appellant argues this assessment is unauthorized and must be stricken because the statute operates prospectively and the assessment cannot be imposed when the underlying offenses were committed prior to the statute’s effective date. This court has held that Government Code section 70373 applies from the date of a defendant’s conviction, not the date the offense was committed. (People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; see also People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415.) We find these cases controlling and apply their holdings here.
“The ordinary legal meaning of ‘conviction’ is a verdict of guilty or the confession of the defendant in open court, and not the sentence or judgment. [Citations.]” (People v. Castello (1998) 65 Cal.App.4th 1242, 1253.) There is no dispute that appellant’s conviction occurred after the January 1, 2009, effective date of the statute. Therefore, the assessment was properly imposed.
DISPOSITION
The sentence is modified to stay the aggregate eight-year term imposed on count 2. As modified, the judgment is affirmed. The superior court is ordered to prepare an amended abstract of judgment reflecting the sentencing modification and to transmit it to appropriate authorities.
WE CONCUR: Kane, J., Detjen, J.