Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF101528, Bernard Schwartz, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Marie Elizabeth Pierson.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Angelo Demetric Will.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
On January 17, 2002, Larry Walker was found stabbed to death in his Corona home. Walker had been stabbed 18 times with a tire plug tool, had been stabbed so violently in the arm that his arm was broken, and had a stab wound to his chest; his throat had also been slit. Walker’s home had been ransacked, and defendant Marie Pierson’s fingerprints were found in the house. After the murder, Pierson and defendant Angelo Will were in possession of Walker’s Cadillac. They also were viewed on surveillance cameras using Walker’s automated teller machine (ATM) card to withdraw a considerable amount of money from Walker’s account. When Will and Pierson were finally apprehended, Will was wearing Walker’s watch.
Both Pierson and Will were convicted of first degree murder and the special circumstance of robbery/murder.
Defendants now contend jointly and individually as follows:
In a supplemental brief, Will joined in Pierson’s arguments that benefit him.
1. Will, joined by Pierson, contends that both prosecutorial and judicial misconduct violated their rights to a fair trial and impartial jury, requiring reversal of their convictions.
2. Pierson, joined by Will, contends that the actions of cocounsel and the prosecutor deprived Pierson of a fair trial and Will of effective assistance of counsel.
3. Pierson contends the trial court erred by denying her motion to suppress her postarrest statements, as she was too intoxicated to give a Miranda waiver.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct.1602, 16 L.Ed.2d 694].
Since Pierson’s statement was not introduced at Will’s trial, he presumably does not join in this argument.
4. Pierson, presumably joined by Will, contends that the trial court erred by admitting taped conversations between Pierson and Will that were surreptitiously recorded after their arrest but essentially inaudible.
5. Pierson contends that the trial court erred by giving CALJIC No. 9.40.1 on aiding and abetting and that the response to jurors’ questions regarding several instructions were misleading and conflicting, compounding the error.
Since Will was convicted as the actual killer, this argument does not apply to him.
6. Pierson, presumably joined by Will, contends the jury’s true finding on the special circumstance of robbery was not supported by substantial evidence.
7. Both defendants contend their abstracts of judgment need to be corrected to delete the parole revocation fine.
Although both the prosecutor and the public defender representing Will in this case were considerably unprofessional, we cannot say, after reviewing the entire record, that the actions of either was evident enough to the juries to be prejudicial to the verdict. We reject the remaining contentions made by Pierson and joined by Will. We do agree that, since both Will and Pierson were given sentences of life without the possibility of parole, the parole revocation fine was inapplicable. We also agree with the People that the minute order from the date of the jury verdict should be modified to reflect the appropriate verdict. We otherwise affirm the judgment.
I
PROCEDURAL BACKGROUND
Will and Pierson were tried by different juries, but both were found guilty of first degree murder (Pen. Code, § 187, subd. (a)), and the special circumstance of robbery/murder was found true (§ 190.2, subd. (a)(17)(A)).
All further statutory references are to the Penal Code unless otherwise specified.
Will admitted he had a serious or violent prior felony conviction pursuant to section 667, subdivisions (a), (c), and (e)(1). Pierson admitted that she had one prior conviction within the meaning of section 667.5, subdivision (b).
The trial court sentenced both Will and Pierson to life in prison without the possibility of parole. The trial court chose not to double the life term, and it stayed the five-year term on the section 667, subdivision (a) prior for Will. Pierson’s prior was stricken.
II
FACTUAL BACKGROUND
A. Testimony in Front of Both Juries
1. Prior incident
On January 16, 2002, about 6:00 p.m., Pierson was picked up (she was working as a prostitute) on the street in Riverside by Angelito Alba. Pierson agreed to have sex with Alba in exchange for a room and a ride. Alba agreed to take her to a Motel 6 located near Magnolia and La Sierra in Riverside. Alba rented the room for about $50.
When they got to the room, Pierson started to perform oral sex on Alba. As she was performing fellatio on him, a man started whistling and pacing in front of the door. The man then said, “Who’s your daddy,” several times. Pierson told Alba the man was her brother and that she was going to get rid of him.
Alba heard the man yell at Pierson, “Why are you doing this again?” Alba then heard them whispering. The door was unlocked from the outside, and the man (whom Alba could not identify as Will in court) asked Alba who he was. Alba told the man that nothing had happened. The man told Alba not to worry about it because it happened all the time. Alba left immediately.
2. Discovery and condition of Walker’s body
Larry Walker lived in Corona. His wife had passed away a year prior to his death. Just a few months prior to his death, he bought a new Cadillac.
Yolanda Corrales had been dating Walker. Corrales last spoke with Walker at 7:00 p.m. on January 16, 2002. About 5:00 a.m. on January 17, she received a call from Walker’s cellular telephone, but no one spoke. She tried calling back but got no answer.
Corrales went to Walker’s home. When Corrales and Walker’s neighbor observed someone lying on the floor, they called the police. Walker was discovered dead inside the house. There was a seven-inch gaping wound on Walker’s throat. There was a stab wound on his chest consistent with being made by a knife and likely the cause of death. He had a slashing wound to his forearm that went down to the bone. Hairs were collected from Walker’s hands and from underneath his body. There were a total of 18 wounds on the back of his scalp.
Corona Police Detective Alan Lorton was assigned as the primary investigator of the Walker case. The house had been ransacked. All of the blinds had been closed. The phone lines in the kitchen and bedroom had been cut. Drawers in the master bedroom were pulled out. The bed mattresses were askew. One of the pillows was missing a pillowcase. Jewelry boxes were empty.
The tire-plugging device (resembling a screwdriver with a hook on the end used to plug holes in tires), which had blood on it, was found in the master bedroom. The device appeared to have been altered to have a sharp point on the end. A napkin with numbers on it was found in the kitchen. Walker’s Cadillac was missing.
3. Apprehension of Will and Pierson
On January 18, 2002, about 1:30 a.m., Walker’s Cadillac was tracked by a locator device in the car to the area of Brockton and Magnolia Streets in Riverside. Riverside Police Officer Jeffrey Rosenwirth received a dispatch, saw the vehicle, and pulled it over. The driver, who was identified as Rose Brown, was removed from the car. Brown had a broken glass pipe used to smoke cocaine in her pocket. She did not appear to be under the influence of drugs or alcohol.
Rose Brown was originally charged as a codefendant in the instant case for being in Walker’s Cadillac. She pleaded guilty to grand theft automobile, receiving stolen property, and being an accessory after the fact for murder. She was sentenced to two years eight months in prison.
Brown testified at trial that she did not know where she got the Cadillac or how she obtained the keys. She claimed she was high on several drugs and alcohol when she was arrested. She could not identify Will in court. She did not recall any statements she had made to the police when she was arrested or during a subsequent interview.
Brown’s interview with police on the night she was arrested was played for the jury. Brown told police that about 3:00 a.m. on January 17, 2002, she was at her friend Carol’s house (the friend was later identified as Carol Williams, and the house was identified as the “dirty house”) on Holsetter. A man named “Jinx,” identified as Will, arrived with Pierson. Pierson and Will had a bag of dolls with them. Will asked if someone would go to the Motel 6 on La Sierra and retrieve his belongings from room 242. Brown agreed to do it. She retrieved everything except some clothes that were in a trash can full of water. Brown threw away the key to the motel room at a friend’s house.
Brown’s blood was drawn right after the interview.
The house was identified as the dirty house because it had human and dog feces all over the house and there was no electricity.
When Brown returned to the dirty house, Will gave her the keys to the Cadillac and told her she could have it and do whatever she wanted with it. Brown thought it was a stolen vehicle.
Pierson asked Will if he had wiped the Cadillac clean of fingerprints prior to giving it to Brown. Brown also overheard a call Will made from a cellular telephone, during which he told someone he needed to “get the fuck out of here.” Brown found paperwork in the Cadillac glove compartment that bore Larry Walker’s name. Will and Pierson had bags with them from which they were pulling out dolls, jewelry, and some change. They also had a pillow case. Will asked for $200 worth of crack cocaine. The key to the Motel 6 room was later found at Brown’s friend’s house.
Surveillance was set up at the dirty house. Will and Pierson emerged from the house. They were apprehended and taken to the Corona Police Station. When Will was arrested, he was wearing a watch later identified as belonging to Walker.
Carol Williams was interviewed at the dirty house by Detective Lorton. Williams testified that Will and Pierson were dating. In the early morning hours of January 17, 2002, Will and Pierson had arrived at 3:00 a.m. at the dirty house in a Cadillac or Lexus. Brown was at the house and agreed to get their belongings from the Motel 6.
Williams had three prior drug convictions.
Williams, Will, and Pierson all drove in the Cadillac to buy cocaine. Will told Williams not to touch anything. Williams asked Will what was going on, and he responded that she did not need to know. After they purchased cocaine, they returned to the dirty house. The three of them, along with Brown (who had returned), smoked it. Williams then observed that Will had a black duffel bag containing a tin can, money, a cellular telephone, and some jewelry. He also had a pillowcase. Will then gave Brown the keys to the Cadillac, and it was gone the next morning.
Williams later testified she did not recall the items coming out of the bag.
Pierson gave Williams several pairs of earrings the next morning, January 17, 2002. Pierson and Will left later that morning and returned the next day. Williams helped them get a room at the Motel 6 in Rubidoux because they had no identification.
Williams gave the earrings to the police, but they were never identified as coming from Walker’s house.
A friend of Will’s, Tony Johnson, was also arrested and interviewed by police.
Detective Lorton also recovered a cookie tin from the dirty house, which Williams said Will had left there. Walker’s stepdaughter identified the tin can as being in Walker’s house prior to his murder.
According to bank records from Walker’s bank, on January 17, 2002, at 11:12 p.m., a withdrawal of $301.50 was made from his account from an ATM located on Magnolia Avenue in Riverside. The same amount was withdrawn at 11:13 p.m. on the same day from the same machine. On January 18, at 1:57:34 a.m., the same amount was with drawn from an ATM located in a Food 4 Less store located on Van Buren Avenue in Riverside. At 1:57:55 the same amount was withdrawn from the same machine. The jurors were then shown videotaped surveillance and still photographs from the Food 4 Less. The ATM in the Food 4 Less was not in view of the camera. A person could be walking to the liquor section of the store and it would look like the ATM. The jury was advised that there was no way of telling if the times on the surveillance tape were accurate. The jury was also shown a map of the distance between Walker’s home and the Motel 6 on La Sierra, which was approximately 2.4 miles.
Detective Lorton had worked in the Vice squad of the Corona Police Department arresting prostitutes and those engaging in lewd acts. He knew the prices charged by prostitutes due to his interviews of prostitutes who were arrested and of their customers. The average price for oral sex at the time of Walker’s death was $20. The price for intercourse was $40 to $50. Detective Lorton had never heard of a prostitute being paid $100 to have sex with her boyfriend in front of another person.
The parties stipulated that none of the fingerprints found in the Cadillac belonged to Will. Two fingerprints found in Walker’s home matched Pierson’s. Items retrieved from the motel room occupied by Will and Pierson and clothing on Will did not contain DNA from Walker. Hair fibers taken from Walker’s hand were his own.
Detective Lorton admitted that a witness was paid money, but he could not recall who it was.
4. Surreptitious recordings of Will and Pierson
After Will and Pierson were arrested, they were placed in a room together. Although Will asked the police officers not to record their conversation, Detective Lorton left the tape recorder on.
Brown’s blood was drawn right after the interview.
David Lewandowski, an audio/video technician employed by the district attorney’s office, enhanced the tape to make it louder. He prepared a transcript from the enhanced tape.
The jury was admonished to not speculate regarding the missing portions on the transcript and was told that the tape was evidence.
During the conversation, Pierson told Will that she told the police Walker had tried to rape her, and the murder was self-defense. Will told Pierson that the police did not know he had been at the house. Pierson told the police that Will was at Walker’s house on Monday. Will also said that Pierson had watched him stab Walker. Will said, “Baby[,] just stick with the story....” When Pierson said to Will that it was self-defense, he responded, “No it’s not[,] Marie.” Will asked, “You didn’t tell them what I told you?” Pierson responded about something to do with “Freaky Monday.” The transcript says, “___ told ___ kill him,” but the audiotape was clear that he said “You told me to kill him.” Pierson then asked, “Am I still your wife?” Will advised Pierson to recant her statement about self-defense. Pierson then said that she never told the police she watched Will stab Walker. She stated, “I didn’t know that there was a knife involved. I knew nothing[] about no stabbing.” Will said to Pierson, “You didn’t see me kill anybody,” and Pierson responded, “I didn’t.” Will told Pierson to tell the “damn truth....” Pierson then brought up rape again, and Will said, “I’m not going with your bullshit story.”
After the above conversation, Will and Pierson were transported to the jail facility together. Corona Community Service Officer (CSO) Cory Wood was in charge of transportation. When CSO Wood put Will and Pierson in the van to transport them, they started to talk about why they had been arrested. He quickly grabbed a tape recorder and taped the conversation.
We will hereinafter refer to this conversation as the “van conversation.”
Wood recalled that Will told Pierson that the police did not have any proof that defendants were in the house on Wednesday. Will then said they did not have any proof that defendants were there on Monday. Will told Pierson the only thing the police had was their being in the car. Wood then heard Will say, “What are they standing out there for?” Defendants then lowered their voices.
The van conversation was played for the jury. Will stated that the police had “no proof that I was in that fucking house, all they is me in that fucking car.” Pierson responded that they had no proof defendants were at that house on Wednesday either. Will responded that he “wasn’t there on fucking Monday.” Will then stated, “[W]hat are they standing out there for... ?,” referring to outside the van. At the end of the conversation, Will told Pierson, “Don’t talk to them fucks no more, okay?” and she responded, “I’m not[,] Daddy.” He then said, “No more mother fucking statements.” Pierson responded, “Yes, Daddy.”
Although the jury was given a transcript, the trial court admonished the jurors to rely upon the tape.
B. Testimony in Front of Will’s Jury Only
Detective Lorton interviewed Will on January 20, 2002. The interview was played for the Will jurors only.
The jury was admonished to only rely on the tape as evidence and that any transcripts were merely an aid.
Will claimed he had no idea why he had been arrested. At the time, Will claimed he used $40 of crack cocaine per day. He had stayed at the Motel 6 on La Sierra on Wednesday night (January 16), but he could not recall the room number. Some man got them the room. Will admitted riding in a Cadillac that night with Pierson and a man named Nino but claimed he could not remember who was driving. They drove the Cadillac to the dirty house because Will found out the police were looking for him.
Will admitted he and Pierson paid Brown to go to the Motel 6 to retrieve their belongings. He denied giving the keys to the Cadillac to Brown but admitted he wiped off the inside of the Cadillac, thinking Nino had stolen it. Will admitted going to the Food 4 Less with Pierson in the couple of days preceding his arrest. Pierson may have used the ATM.
Will admitted that he knew Walker. Walker would pick up Pierson and Will and pay them to have sex in front of him. He would pay them each $50. Will called it “Freaky Monday.” He last saw Walker on the preceding Monday night. The Cadillac that Nino had that Wednesday evening was the same type that Walker used to pick them up. Will had no idea that Walker was dead. He adamantly denied that he killed anyone.
Will denied that he told Johnson he had to pick up a Cadillac. He admitted he purchased a tire-plug device but claimed he threw it in the bushes by the Motel 6 because he saw police approaching him. He denied he ever took Walker’s phone. The watch he was wearing on the night he was arrested was one he had purchased.
C. Testimony in Front of Pierson’s Jury Only
Detective Lorton also interviewed Pierson on January 20, 2002. Pierson was staying in room 242 at the Motel 6 on La Sierra on the previous Wednesday night. She got the room through a man who called himself Tony. Pierson had seen Will with a knife in the past.
The jury was played a tape of the interview and given a transcript. Again, the jurors were admonished that the tape was the evidence and the transcripts were only a guide. The jurors were not to speculate as to any portions that had been excluded.
Pierson had met Walker for the first time the previous Monday. He picked her up on the street. She and Walker agreed that she and Will would have sex in front of him while he watched. Pierson drove with Walker in his Cadillac, and they picked up Will at the Motel 6. They went to Walker’s house, where Will and Pierson had sex in front of Walker; Walker took Viagra and masturbated. Walker paid them each $50.
On Wednesday night they went back to the house when Walker called them. Pierson saw that Will was carrying the tire-plug device that night but then claimed he threw it in the bushes at some point. Will drank beer with Walker, and they left at 10:00 p.m. Pierson claimed that Walker asked her to have sex with him, but she refused. Pierson borrowed $60 from Walker to supposedly fix a broken down car. Pierson insisted they returned to Walker’s house later that night to return the money.
When they returned to Walker’s house the second time, Pierson did not feel well. Walker and Will drank beer. Pierson lay down on the floor near the couch because she was sick, and she fell asleep. When she woke up, it was dark in the house, and someone was moaning. She saw Walker lying on the ground. Will told Pierson to be quiet and not to turn on the lights. He told her to go get in the Cadillac in Walker’s garage.
Will had Walker’s cellular telephone. Pierson gave some earrings to Williams that she got from Will. Will gave the keys to the Cadillac to Brown. On the way to Walker’s house that night (to which she claimed they walked), Will was joking to Pierson that they would be driving the Cadillac that night.
Pierson first claimed that Will had gotten Walker’s personal identification number (PIN) and told it to her. She admitted they used the ATM card at the Food 4 Less. She eventually told the police that Walker had tried to rape her, and Will had protected her by stabbing Walker. While Walker lay bleeding, Will asked for his PIN, and Pierson wrote it down. Pierson claimed she did not see how badly Walker was injured. Will called Walker “Freaky Monday.”
D. Defense Presented to Both Juries
Will testified in front of both juries. He admitted he had prior misdemeanor convictions for assault with a weapon and assaults on his previous wife. He was using drugs at the time of the convictions. He had a prior conviction of robbery for taking money from a store clerk.
Will admitted that he killed Walker; however, he did not plan to rob or kill him prior to going to his house. In January 2002, he lived in a house in Moreno Valley with his wife but would leave when he was bingeing on drugs. During the week of January 13, he was bingeing on crack cocaine and drinking alcohol. He had a much higher than $40-per-day cocaine habit. Will bought drugs from Johnson. During the week of January 13, Will and Pierson were using drugs 15 to 20 times per day.
Will first became aware of Walker the last week in December 2001. Walker picked up Pierson on the street in his Cadillac. Pierson later returned to the Motel 6. At the time, Pierson could make between $40 to $150 for prostitution acts.
On January 7, Pierson was in Walker’s car. Pierson approached Will and told him that Walker would pay them to have sex. They went to Walker’s house. Will had a few beers, and then he and Pierson had sex in Walker’s bedroom while Walker watched. Walker paid $100 to Pierson.
On January 14, Pierson and Walker picked up Will at the Motel 6. They went to Walker’s residence, and Will and Pierson had sex in front of Walker again. Walker paid them $100.
On January 16, Will had been using crack cocaine and drinking. Will went to the room where Pierson was with Angelito Alba. He told Alba not to worry; it was just business. Will was looking for Pierson to find out what room she was in.
Will and Pierson ran out of money for drugs. They decided to see if Walker would pay them to have sex again. A friend dropped them off at Walker’s house. Pierson told Walker why they were there, and he let them in. Will was high and felt paranoid. He started taking shots of vodka. He also drank beer. He had the tire-plug device for protection that night. It was the only weapon he had.
While they were sitting on the couch, Walker pulled out his penis and started to masturbate. Will became disgusted with the situation. Will jumped up and called Walker a pervert. Walker pushed Will away. Will hit Walker, and Walker told them to get out. Will then took the tire-plug device out of his pocket and hit Walker in the head with it. Will then kept hitting Walker with the device. A kitchen knife suddenly appeared on the floor near them; it may have fallen off a table or the couch. Will picked it up. Walker fell to the ground, and Will stabbed him. Will did not recall what happened to the knife. Will was very angry when he stabbed Walker.
Will picked up Walker’s cellular telephone and tried to call his friend for a ride. He mistakenly called Walker’s friend. Will then took a watch and a wallet that were on a table. He did not recall cutting any phone cords. He took a container with change from the bathroom. He did not take any jewelry. Will and Pierson left in the Cadillac. Will never heard Walker give his PIN for the ATM card. Will admitted they went to an ATM machine, and Pierson used an ATM card to withdraw money. Will admitted they took $600 out of the ATM.
Will and Pierson then drove to the dirty house and bought drugs from William’s boyfriend. Will claimed he abandoned the Cadillac around the corner from the dirty house. They went to the Food 4 Less the following day to buy alcohol. Will never said anything to Johnson about getting a Cadillac before Walker’s death.
When he was interviewed, the police told him what Pierson had claimed about the murder. Will did not dispute what was said on the whispering conversation transcript. When Will told Pierson to stick to the story, he was trying to tell her to claim they were not present. He knew they were being taped. He made the statement that Pierson had told him to kill Walker because he had been told by the police that she had blamed him. Will did not recall slitting Walker’s throat.
E. Will’s Defense In Front of His Jury Only
Walker’s blood was tested and found to contain alcohol and Viagra. Based on the amount of Viagra in Walker’s blood, he had taken Viagra within one to 24 hours before his death. Brown’s blood, which was drawn on January 18, 2002, had measurable amounts of methamphetamine, cocaine, and marijuana. Furthermore, based on the substances found in Brown’s system, she was under the influence when the police stopped her.
Corona Police Department Lieutenant Lloyd Coleman supervised the Walker investigation. There was no police report prepared showing a witness was given money to give information on Will’s and Pierson’s whereabouts.
Bridget Greene, Will’s sister, testified that Will had come to her house one week before his arrest, accompanied by a woman. He was acting belligerent, and “[h]is eyes were big and wild looking.” Will appeared very angry; he paced back and forth and was fidgety. Greene took Will to their parents’ house, where Will also yelled at his mother and father.
Dr. James Missett was a psychiatrist who testified that a person on cocaine or methamphetamine was more prone to violence. Such a person could go into an uncontrollable rage. This rage could cause the person to repeatedly stab someone. Dr. Missett viewed the police interview of Will and thought he was under the influence of drugs.
F. Pierson’s Defense Presented Only to Her Jury
Pierson did not call any witnesses on her behalf. However, Will testified on cross-examination in front of the Pierson jury only that Pierson had lied in her statement to the police that he had tortured Walker to get his PIN. Pierson was likely telling the truth when she said that she took jewelry from Walker’s house. She lied when she said Walker tried to rape her.
III
VIOLATION OF DEFENDANTS’ FAIR TRIAL RIGHTS DUE TO PROSECUTORIAL AND JUDICIAL MISCONDUCT
Will, joined by Pierson, contends that due to judicial misconduct and prosecutorial misconduct, including a pattern of late disclosure of discovery, they were denied a fair trial, requiring reversal of their convictions.
The People argue that Pierson waived any objection to the misconduct committed by the prosecutor or the trial court by failing to make any objections at trial. We agree that Pierson’s counsel did not object to the discovery violations by the prosecutor or complain regarding judicial misconduct. Therefore, Pierson has waived these claims on appeal. However, since we will address the issue as to Will, we will address whether any prejudice resulted that would have impacted Pierson’s case.
It is axiomatic that a defendant is entitled by the due process clauses of the federal and state Constitutions to a fair trial. (Estes v. Texas (1965) 381 U.S. 532, 540 [85 S.Ct. 1628, 14 L.Ed.2d 543].) Defendants claim that the conduct detailed below committed by the prosecutor, John Ruiz, and the actions of the trial court cumulatively resulted in their being denied a fair trial.
A. Prosecutorial Misconduct
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
1. Discovery violations
A criminal defendant has no general constitutional right to discovery. (Weatherford v. Bursey (1977) 429 U.S. 545, 559 [97 S.Ct. 837, 51 L.Ed.2d 30].) Under Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct.1194, 10 L.Ed.2d 215], the prosecution must disclose to the defense before trial all material exculpatory evidence. The duty of disclosure exists regardless of good or bad faith and regardless of whether the defense has requested the materials. (U.S. v. Agurs (1976) 427 U.S. 97, 107 [96 S.Ct. 2392, 49 L.Ed.2d 342.]) The obligation is not limited to evidence the prosecutor’s office itself actually knows or possesses; it also includes “evidence known to the others acting on the government’s behalf in the case, including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437 [115 S.Ct. 1555, 131 L.Ed.2d 490].)
For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. (U.S. v. Bagley (1985) 473 U.S. 667, 674, 676 [105 S.Ct. 3375, 87 L.Ed.2d 481]; see In re Sassounian (1995) 9 Cal.4th 535, 544.) Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. (Bagley, at pp. 682-683; see In re Brown (1998) 17 Cal.4th 873, 887.)
Section 1054.1 requires under state law that the prosecuting attorney disclose to the defendant all material and information “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be the possession of the investigating agencies[.]” Evidence subject to disclosure includes persons the prosecutor intends to call as witnesses (§ 1054.1, subd. (a)); “[s]tatements of all defendants” (id., subd. (b)); “[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged” (id., subd. (c)); and “[a]ny exculpatory evidence” (id., subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)
“If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then... the defendant has all that is necessary to ensure a fair trial....” (People v. Salazar (2005) 35 Cal.4th 1031, 1049; see also People v. Morrison (2004) 34 Cal.4th 698, 715.)
“We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 299.) Moreover, “the usual remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance.” (People v. Robbins (1988) 45 Cal.3d 867, 884.)
a. Witness lists
On October 14, 18, and 19, 2004, Will’s counsel, Mary Ann Galante, filed informal requests for discovery pursuant to section 1054. It was agreed that trial would commence on August 8, 2005. Hence, under section 1054.7, all discovery was due on July 8, 2005. Voir dire of the jury began on August 11, 2005.
Ruiz read his witness list into Galante’s cellular telephone on July 27, 2005, despite the fact that Galante had informed Ruiz that she would be out of town. Galante provided her witness list on August 22, 2005. Will’s counsel submitted a list the same day.
Will provides absolutely no argument on appeal that the trial court somehow abused its discretion by denying any remedy to him based on the witness lists. We cannot see how the trial court abused its discretion. Galante had the witness list in ample time prior to the beginning of the case to prepare her case.
b. Enhanced whispering conversation tape
The week prior to August 17, 2005, Galante was advised by Ruiz that he was going to be providing an enhanced version of whispering conversation (making it louder) and a transcript based on the enhanced tape. Galante objected pursuant to section 1054.1. Galante admitted receiving the original tape of the conversation in the original discovery materials. Further, Galante was given police reports that detailed part of the conversations. Pierson’s counsel believed he received the tape in 2004. The trial court stated that if the cassette was turned over “way back when,” there was no problem. Further, there were reports referencing the recording.
Ruiz stated that he had just been given authorization to prepare transcripts from the enhanced tapes. The trial court noted that Galante had had the tapes in her possession before the discovery deadline and that she could have enhanced the tapes herself.
Galante objected to the admission of the tape based on the late discovery of the enhanced version of the tape. She did not get the enhanced version of the tape until August 22 and did not receive a full transcript until September 13. She argued that the prosecutor should not have announced ready for trial if he did not have the enhanced tape finished. She also argued that Will had been stripped of a defense. The trial court felt the tape had been provided in May 2002, and Galante and her office were on notice that the tape was of poor quality. Further, there was a police report turned over that discussed the conversation. Galante and her office then either decided to sweep it under the rug or felt it could not be adequately altered. The new transcript was “irrelevant” because the tape was the evidence; further, the preparer of the transcript, Lewandowski, could be cross-examined on the accuracy of the transcript. A mistrial motion based on this late discovery was denied.
There is no dispute that the whispering conversation was given to Galante and Pierson’s counsel well before trial. They also received a police report regarding the whispering conversation wherein Pierson said it was self-defense, but Will said it was murder. This was clearly not exculpatory. Hence, it was only required to be turned over under section 1054.1.
“It is defendant’s burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.” (People v. Pinholster (1992) 1 Cal.4th 865, 941.) Will claims that the information forced him to testify. We disagree. Will was in possession of a police report written by Detective Lorton that he overheard part of the conversation during which Will said to Pierson it was murder and not self-defense. Will also had the tape. Will certainly anticipated that statement was going to come before the jury. We do not see how such enhancement of the tape would have changed the direction of the defense, when the most damaging statements were already known to Galante.
c. Late discovery of witnesses McCormick and Lewandowski and disclosure of curricula vitae
Lewandowski, who enhanced the whispering conversation, was added to the witness list on August 22, and Galante complained that she was unaware of his testimony until two days prior to trial. She also complained that she only received his curriculum vitae (CV) the night prior to his testimony. Galante argued that under Roland v. Superior Court (2004) 124 Cal.App.4th 154 his testimony had to be reduced to writing despite the fact that Galante was on notice that he would testify about the contents of the enhanced whispering conversation.
Roland requires that all “oral report[s]” be given in discovery. (Roland v. Superior Court, supra, 124 Cal.App.4th at pp. 167-168.)
The trial court believed that Lewandowski’s testimony only went to how he enhanced the tape and that he prepared an accurate transcript from the enhanced tape; the substantive evidence was the tape itself.
Also on August 22, 2005, the prosecution stated to the trial court that it had an updated witness list, adding Pathologist Mark McCormick’s name, which inadvertently had been left off the original list. McCormick’s CV was not given to the defense until September 13.
Galante cross-examined Lewandowski on his CV.
Will complains that the late addition of Lewandowski, the late disclosure of Lewandowski’s and McCormick’s CV’s, and the failure to prepare a report of Lewandowski’s testimony all constituted late discovery. However, despite citing to Roland, he provides no argument as to how this purely inculpatory information prejudiced him. As stated, ante, the most damaging evidence on the whispering conversation was coming in through Detective Lorton. Lewandowski merely testified about how he enhanced the tape. Will has also failed to argue that the late disclosure of the pathologist’s name prejudiced him, as he clearly had the coroner reports. We do not see how the trial court abused its discretion by providing no remedy or that such information prejudiced Will.
d. Johnson’s interview, tapes and transcripts for two other witnesses and four or five blood testing results
Will next complains about the receipt of several DNA reports, an interview of Johnson and subsequent report wherein he told officers he no longer wanted to testify against Will, and two tapes and transcripts of Will’s cellmate and another witness named Faith Taft, during the week prior to August 24. However, as to all of this evidence, Galante admitted that neither she nor Ruiz was going to use the evidence and that it was not exculpatory. As to the DNA results, the parties were prepared to stipulate to the results, which favored Will. Will does not argue that this information was prejudicial to him on appeal, and we find no such prejudice.
e. Rap sheets for witnesses
At a hearing conducted on August 24, 2005, Galante complained about the voluminous reports on prior convictions for the prosecution witnesses, which had been received just one and one-half weeks prior to trial. Ruiz advised the trial court that it was office policy not to provide copies of rap sheets, but he had allowed both defense counsel to review them at their office. Furthermore, a police report regarding Johnson and the fact he had a prior conviction was provided to the public defender’s office in February 2002. Ruiz indicated that he did not believe any of the witnesses would deny they had prior convictions, and if they did, he would stipulate to the truth of the convictions.
Galante argued the reports on Johnson alone filled a three-ring binder. Galante wanted a mistrial; she did not want exclusion of the reports, as they were evidence that helped her. However, Galante asked that the prosecution witnesses be excluded or that a continuance be granted. The trial court noted that all counsel needed to do with the reports was review them and be prepared for cross-examination. Since Ruiz was willing to stipulate, Galante would not need to prove the prior convictions.
Even if there was a discovery violation here (although the record is not clear as to when Ruiz informed both counsel about the existence of the rap sheets), there can be no prejudice. Ruiz agreed to stipulate to the truth of the prior convictions. Galante only needed to familiarize herself with the actual convictions for cross-examination. Although she sought a continuance, the trial court faulted her for failing to take any further action on the reports since viewing them. Even Will on appeal does not claim prejudice.
f. Pierson polygraph
On August 22, after voir dire had begun, Ruiz faxed to Galante a copy of Pierson’s polygraph interview in which she admitted that she and Will had planned to rob Walker prior to entering his home. The prosecutor had just become aware that there were audiotapes of the polygraph interview. Galante contended she needed additional time and investigation because of the tapes.
Although Galante argued she would have conducted voir dire differently, the trial court rejected that there was any prejudice for voir dire. It also indicated that it did not believe there had been any intentional withholding of evidence by the prosecutor but did consider it late discovery. Ruiz maintained that Will’s prior counsel was well aware a polygraph had been conducted but was not aware of recordings. Upon receipt of the audiocassettes, Ruiz immediately notified Galante.
Galante said Pierson’s polygraph provided different evidence because Pierson talked about “beating” the PIN out of Walker. Galante claimed she was unable to conduct cross-examination of the officers to be presented by the prosecution that day.
The trial court ruled that there was no intentional withholding of information by Ruiz. It stated it was a reality that not all discovery gets turned over 30 days prior to trial. The trial court felt a continuance was needed and agreed to continue the case for a day. The tape was not going to be used unless Pierson testified. The interview was never introduced at trial, because Pierson decided not to testify.
This evidence was clearly in police possession prior to 30 days of trial. However, once the prosecutor became aware of the evidence, he immediately disclosed it to the defense. Will was granted a continuance to review the new information, a remedy provided for in section 1054.5, subdivision (b).
Will claims on appeal that trial counsel had to change her strategy in the middle of voir dire because her client would have to testify. Since Will has not made voir dire of the jury part of the record on appeal, we are unable to determine to what extent such statement is true. Further, at the time of voir dire, it was uncertain whether Pierson would testify, and Will had no way of knowing if the interview would be admitted. Also, Will himself may have decided not to testify. The same uncertainty remained with or without the evidence. Furthermore, Pierson had disclosed similar information in her statement to police. Finally, since the evidence was never admitted, it certainly did not prejudice Will.
g. Letters between defendants and seven tapes of Will’s conversations in jail
Will complains on appeal about stacks of letters received two weeks prior to August 24, which were apparently letters written between Will and Pierson while they were in jail. Further, Galante complained below about receiving audio tapes of conversations that Will had on the phone since in custody. Galante claimed to have either received them about the same time as the letters. Ruiz represented that he immediately turned the items over when he became aware of them and that he was not planning to use them in his case-in-chief. Galante needed to review them for exculpatory information.
Will does not provide this information on appeal, so we are unable to determine if they contained exculpatory information. Furthermore, Will does not argue prejudice. Since we are not aware of the length of this information or their contents, we are unable to make any determination as to whether it prejudiced Will in the preparation of his case or contained information beneficial to him, or whether a continuance was required.
h. Rose Brown blood collected for testing
Brown’s blood was collected at the time of her interview on January 18, 2002. Ruiz turned over the results after Brown testified, or on August 29, 2005. The information came to light when Brown stated on cross-examination that her blood had been drawn after her interview. The results of the blood test were only given to Ruiz the day he gave them to the defense.
Galante claimed she needed to call a toxicologist because of Brown’s late test results. The trial court noted that Galante had already mentioned calling a toxicologist.
We believe that this certainly was a discovery violation, as the results were in the possession of the prosecuting agency; however, it was not prejudicial, as the evidence was presented to the jury. It therefore does not undermine the confidence in the outcome of the jury’s verdict.
Will contends that he was prejudiced due to the fact that he did not have the report during Brown’s testimony. However, Brown certainly could have been recalled for further cross-examination. Furthermore, Will was able to present testimony through her toxicologist (whom Galante had already planned to call) that Brown, based on the test results, was likely under the influence when she was interviewed by police. Brown herself had testified that she was under the influence at the time of the interview. We cannot see how there was any abuse of the trial court’s discretion in denying a mistrial on this ground or invoking any other remedy.
i. Officer Rosenwirth’s January 18, 2002, report
Will complains that he did not receive a report prepared by Officer Jeffrey Rosenwirth on January 18, 2002, until September 1, 2005, the day Officer Rosenwirth was scheduled to testify. He testified regarding locating the Cadillac through a detection system and finding Brown inside.
On appeal, Will does not claim any prejudice from the failure to turn over the report. Clearly, it is argued merely to show a pattern of late discovery, which we will address, post.
j. Exculpatory evidence from Food 4 Less employee
On August 31, 2005, the prosecutor advised the trial court that he had directed Detective Lorton to review all of the reports in the case to make sure they had all been given to the defense. Detective Lorton found a report regarding a Food 4 Less clerk who had reviewed the videotaped surveillance and decided that Will was not the person she had previously thought was a regular customer of the store. For Departmental policy reasons, the report was not considered completed, so it had not been turned over. Ruiz indicated that Detective Lorton would have to be ordered by the trial court to turn it over, which the court did. The prosecutor would not be using the information in his case-in-chief. There was no objection by either counsel.
This was not “material” information to Will’s case. (Bagley, supra, 473 U.S. at pp. 674, 676.) The jurors were shown photographs and videotapes from the Food 4 Less and could decide for themselves whether it was Will. This is not a situation where the only identification was the clerk’s testimony. Nonetheless, in his statement to police, Will admitted being in the Food 4 Less. Will cannot show a Brady violation or that the evidence was prejudicial to his case.
k. Wood’s report and van conversation tape and transcript
During the week of September 1, 2005, Ruiz provided Galante with a report prepared in August 2005 of an interview with CSO Wood, reporting additional details of the van conversation. The only additional detail was that he heard Will indicate to Pierson that the officers were standing near the van, and that is when defendants lowered their voices. The information had just come to the prosecutor’s attention, and the prosecutor had instructed that a report be made immediately and that it be turned over to the defense. The trial court did note that it was late but concluded that it was not intentionally withheld by the prosecution.
Galante objected to the transcript of the van conversation given to the jurors, arguing that it was different than the original one she had received. Ruiz represented that he had left it on the counsel table the night before. The trial court reviewed the tape and found the transcript matched the tape. It also indicated that the tape was clearly audible without the transcript. The new transcript was more accurate.
Will refers to not receiving an enhanced tape of the van conversation. However, the record does not support that such enhanced tape was ever made.
Ruiz disclosed the additional information from Wood immediately upon receiving it, thereby complying with section 1054.7. Furthermore, the tape, which the trial court represented was clearly audible in court (and which we have reviewed) matched the new transcript. There was no further requirement that Ruiz provide a transcript under the discovery rules. (§ 1054.1, subd. (f)). We cannot say that the late revision to the transcript constituted a prejudicial discovery violation. Moreover, Wood’s testimony that Will knew he was being recorded in the van and that he told Pierson the police had no proof they were in Walker’s house was immaterial to the case, as it was heard on the tape.
l. Amended transcript for Will’s testimony
On September 8, 2005, Ruiz faxed Galante an amended transcript of the Will interview, which contained numerous changes from the transcript originally received in discovery. We agree with the People that under the discovery statutes Ruiz was only required to provide a written or recorded statement of the witness. (§ 1054.1, subd. (f).) Although redactions of the transcript required delay in the proceedings, this cannot be deemed a prejudicial discovery violation. Moreover, the jury was admonished that the tape was the evidence in the case, not the transcript.
m. Will’s rap sheet
Galante objected to the fact that she received Will’s rap sheet on September 22, 2005. The prosecutor gave Galante a hard copy of the rap sheet for Will even though it was against office policy. We find no obligation under section 1054.1, subdivision (d) that the prosecution must disclose a defendant’s prior convictions 30 days prior to trial. We reject that People v. Santos (1994) 30 Cal.App.4th 169, 178-179 requires otherwise, as it only refers to disclosure of information for prosecution witnesses.
Based on the foregoing, we have rejected that any individual discovery issue raised by Will was prejudicial to his case. Will, properly joined by Pierson, additionally argues that the pattern of late discovery resulted in prosecutorial misconduct and denied them a fair trial.
Several of the discovery violations were not as a result of intentional misconduct on Ruiz’s part. The Johnson interview, letters between the defendants, tapes of jail conversations, Pierson’s polygraph interview, Brown’s blood test, Wood’s additional testimony, and Food 4 Less report all were in possession of the police, but not of Ruiz. He immediately turned them over when he became aware of them. We cannot find Ruiz committed prosecutorial misconduct when he immediately disclosed information when it became available to him.
As for the remaining items the witness list and addition of witnesses after the start of trial, the showing of rap sheets two weeks prior to trial, late disclosure of Officer Rosenwirth’s report we cannot conclude that the late disclosure was based on gamesmanship or intentional deception by Ruiz. We do fault Ruiz for not providing correct transcripts in ample time prior to trial. However, we cannot conclude that the late discovery was due to reprehensible methods on Ruiz’s part to attempt to persuade the jury. (People v. Benavides, supra, 35 Cal.4th at p. 108.) Furthermore, based on this court’s finding that none of the discovery violations or late discovery was prejudicial, we cannot say that the late discovery so infected the trial as to make it a denial of due process. (People v. Morales, supra, 25 Cal.4th at p. 44.)
2. Inadmissible evidence by prosecutor
Will argues that there was prosecutorial misconduct based on the prosecutor eliciting inadmissible evidence.
During cross-examination of Will regarding the whispering conversation, the prosecutor asked Will if he said to Pierson, “[T]hey have no fucking proof I was in that fucking house” because “she had rolled over on [him] when she was interviewed by police[.]” Galante objected. The objection was sustained. Galante did not request an admonition.
Will argues that the question put before the jury the hearsay statement of Pierson, who was not available for cross-examination, which violated his right of confrontation, relying on Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177].) Will further argues that although the objection was sustained, it allowed the jury to speculate that Ruiz had more information regarding the robbery/murder theory.
We conclude that even if the question was improper, there was no prejudice. The trial court sustained counsel’s objection, and there was no answer to the question. Further, the trial court instructed the jury that if an objection was sustained, they were not to guess what the answer might have been or assume that the insinuation suggested by the question was true. Finally, the jury had already heard the whispering conversation and knew that Pierson was claiming self-defense. This brief comment by the prosecutor was not prejudicial.
Additionally, during the Will interview, a statement made by Detective Lorton, “I’ve seen people convicted for less,” which had been excluded by the trial court, was inadvertently played for the jury. A second portion, that “[a]ll we want to do is talk to Marie and see what she has to say about all of this,” was also inadvertently played. The prosecutor agreed they would be edited out for the final version to go to the jury.
We certainly do not believe that this evidence was intentionally included by Ruiz, nor do we believe that this brief mention in the long tape of Will’s interview so infected the trial as to make it a denial of due process. (People v. Morales, supra, 25 Cal.4th at p. 44.)
3. Prosecutor’s rude and intemperate behavior
Will further contends that the actions of Ruiz in making snide remarks to Galante, Will, and other witnesses; his nonverbal actions; and his argument to the jury constituted misconduct denying him a fair trial.
a. Comments to witnesses
At the start of trial on August 30, 2005, Galante noted that some of the prosecution’s exhibit photographs were missing and that Will had been accused of taking them. Will had been searched, as had his cell, and no exhibits were located. The exhibits were later found, and Ruiz apologized.
During cross-examination of Johnson, Galante confirmed that he had been arrested the night before his testimony. Johnson testified that, when he saw Ruiz after he was arrested, Ruiz said to him, “You messed with the wrong prosecutor.” Johnson took it to mean because he had not answered the subpoena.
On September 9, Galante, Pierson’s counsel, Ruiz, and the trial court had an on-the-record discussion in chambers. Galante complained that earlier in the trial, the prosecutor had made derogatory comments about her in front of Will while Galante was out of the courtroom. Ruiz indicated that when Galante left the courtroom after a long argument, someone on the court staff stated that Galante’s argument had been really “out there,” and Ruiz had agreed.
Ruiz then stated that on another occasion, Pierson’s counsel had asked in an exasperated tone where Galante was and then immediately stated that he was not going to say anything derogatory about Galante. The prosecutor then said “flippant[ly],” “Oh yeah. That’s right. We got rats in here,” referring to Will. It was then that the prosecutor realized that Johnson, who was in custody, was still on the witness stand. The prosecutor said to Johnson that he did not mean him and apologized. The prosecutor became concerned that Will was going to think he was talking about him. The prosecutor chose to stay quiet and walked out of court. Pierson’s counsel confirmed that this was what had occurred.
Will told Galante that the prosecutor had approached Johnson after stating they should stop talking because there was a snitch in the room and told him he was not talking about him; the prosecutor then pointed to Will and said he was talking about the “rat over there,” Will then said that he called the prosecutor, “a f’ing faggot.” Galante also claimed Ruiz had called the courtroom deputy a “weak female” and that he claimed to “run that courtroom.”
The trial court confirmed that his deputy had informed it that Ruiz had said something to Will. At the time, the trial court admonished Ruiz not to talk to Will. Galante claimed that the direct communication between Ruiz and Will was an ethical violation and interfered with the attorney/client relationship.
The trial court noted that its admonishment to Ruiz had worked, as it was the last communication. The prosecutor felt that his statements were misrepresented by Galante. He denied he had directly communicated with Will.
The judge stated that in all the years he had been practicing law and had been on the bench, he had never seen attorneys take a case so personally. Counsel on both sides had forgotten what the case was about, which was the murder victim and the defendants who were on trial for their lives. Due to the anger on both sides, the parties were losing sight of their jobs in this case. The trial court noted that “fortunately” none of this behavior had been exhibited in front of the jury. It was “stunned” by the behavior of attorneys, who had excellent reputations.
Based on the record before this court, Ruiz did not directly speak with Will. There is no evidence that any comments impacted any of the witnesses or the relationship between Will and Galante. As noted by the trial court, none of this behavior was exhibited in front of the jury. While we certainly believe that this sort of behavior is inappropriate, we cannot say that this evidence impacted the jury verdict.
b. Comments to counsel
The comments to Galante by Ruiz were numerous but mostly were brought out due to Galante accusing Ruiz of ethical violations. We have reviewed the entire record but provide as a sampling only a few comments made by Ruiz.
Outside the presence of the jury, Ruiz told Galante, “Thank you for the echo” when Galante repeated what he had said. When Galante apparently did not follow the trial court’s instructions, Ruiz said to the trial court, “I thought you were very clear in your instructions to her.”
While Ruiz was arguing to the trial court that the defendants could have enhanced the whispering and van conversations, he stated they had a choice of strategy: “Do we run the risk of flagging it to the D.A. so he gets it cleaned up in time so that we can find out what’s on that tape, or lay low in the weeds, like a snake in the grass?” The trial court felt the comment was inappropriate. At other times, outside the presence of the jury, Ruiz told to Galante to quit interrupting the trial court; stated how many times the trial court has to “ask this woman” about giving a clear answer; accused her of wasting time or delaying trial; stated that issues had already been litigated and they needed to move on; and accused her of attempting to cause a mistrial.
Only a few comments were made in the presence of the jury. There was an objection to a question by Ruiz, and he responded, “I will let the witness answer.” Galante objected to a question on the ground of narrative, and Ruiz responded, “I’m allowing you to explain it, please,” after the trial court overruled the objection. Just prior to a rebuttal witness testifying, the prosecutor advised the trial court, “Your Honor, I don’t want to hear any speaking objections.”
During cross-examination of Detective Lorton, Galante attempted to submit some handouts regarding advertisements on the Internet for people who liked to watch other people have sex. Upon reviewing the items, the prosecutor commented outside the presence of the jury that Galante had “sunk to a new low now.”
While the jury was deliberating, Galante advised the trial court that Ruiz had said to her in front of some 20 people, “You’re a pig. You shit where you eat.” Galante noted for the record that the prosecutor had not denied making the comment. Later, the prosecutor responded on the record, outside the presence of the jury, “And counsel is being full of shit again, your Honor.”
Will relies on the case of People v. Pitts (1990) 223 Cal.App.3d 606, a case in which the judgment was reversed due to prosecutorial misconduct. We have reviewed Pitts, which provides an exhaustive review of the record in that case. In Pitts, the court recognized that statements made outside the presence of the jury can still be misconduct, but “that aspect” can affect whether the comments were prejudicial. (Id. at 693.) However, in Pitts, a majority of the statements made by the prosecutor were in the presence of the jury. (See id. at pp. 716-721.)
While here we certainly do not condone some of the statements made by Ruiz especially if he in fact called Galante a “pig” we cannot say that it prejudiced the jury verdict. As we will set forth, post, the evidence of defendants’ guilt was overwhelming. We cannot say the actions of the prosecutor in this case, which occurred mainly outside the presence of the jurors, constituted prejudicial prosecutorial misconduct.
c. Nonverbal communication
Will also complains about nonverbal actions by Ruiz during trial. Galante complained Ruiz was “grimacing” and “grinning” to the jury during one of her objections. During a break in Detective Lorton’s testimony, Galante complained to the trial court that Ruiz was nonverbally communicating with the jurors by rolling his eyes and audibly sighing when Galante asked the witnesses questions. There was no comment by the trial court. During cross-examination of Detective Lorton, Galante noted that Ruiz had started laughing about one of her questions. Galante also complained that Ruiz had been laughing during direct examination of her toxicologist. The trial court responded that it had not see those things but indicated that such behavior would actually hurt the prosecution’s case. On that same day, Galante accused Ruiz of using a belligerent tone. The trial court responded, “I don’t think I need to comment on that.”
Obviously, based on the record before us, we cannot determine whether such nonverbal communications occurred. The trial court never acknowledged that such actions were committed. We cannot base a claim of prosecutorial misconduct on things that do not appear in the record on appeal.
d. Closing argument
Will’s final claim of prosecutorial misconduct is that Ruiz denigrated Galante during rebuttal closing argument. Ruiz advised the jurors that he had argued an issue about a show on the Discovery channel regarding civilization in closing argument in Pierson’s case. Galante had used a similar argument in her closing. Ruiz said that was his argument and stated, “And she stole it from me.” Galante objected on the ground of “deprecating counsel.” The objection was sustained. Ruiz then stated, “And she told you with a straight face she watched the Discovery channel.” The prosecutor was now contending it was not on the Discovery channel. Galante again objected on the ground that it was deprecating counsel and asked that the jury be admonished. The trial court admonished the jury, “Any attack on the personal integrity of an attorney is, obviously, inappropriate argument. [¶] Ladies and gentlemen, you are only to be focused on the facts of the case, make your decision on the facts and the evidence that has been presented to you.” Despite the admonishment, the prosecutor stated, “That program was on Nova. And I opened my argument in the Pierson jury argument with it. It wasn’t on the Discovery channel.”
Also during closing argument, when Galante objected to his argument as improper and it was overruled, Ruiz responded, “In other words, there was nothing improper at all about what I just did again.”
Ruiz argued that the defense was a “sham, it’s a fraud they tried to perpetrate on you....” The trial court overruled Galante’s objection. The prosecutor responded, “In other words, that was proper too. [¶] And they tried to play on your sympathies. They tried to use your heart to get that murderer off.”
“It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense” or to otherwise denigrate defense counsel. (People v. Bemore (2000) 22 Cal.4th 809, 846.) Nevertheless, an improper comment occurs only when there is “‘a personal attack”” on defense counsel. (People v. Taylor (2001) 26 Cal.4th 1155, 1167.) Furthermore, “‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’” (People v. Wharton (1991) 53 Cal.3d 522, 567; see also People v. Welch (1999) 20 Cal.4th 701, 752.)
Here, Ruiz’s comments about Galante stealing his argument were clearly inappropriate. However, we believe that the trial court’s admonishment to the jury that the arguments and statements by the attorneys were not evidence and that they should rely on the evidence cured any potential harm. Moreover, argument regarding the “sham” of a defense constituted proper, vigorous argument. We cannot conclude that the prosecutor’s statements made during rebuttal argument prejudiced the case.
B. Judicial Misconduct
Will, joined by Pierson, contends that he was additionally denied a fair trial due to judicial misconduct because the trial court was biased and should have restrained Ruiz.
1. Additional factual background
After the prosecution rested on September 14, 2005, subject to two more witnesses who were on vacation, Galante wanted to discuss her witnesses outside the presence of the jury. The trial court refused and asked if she had any witnesses for the afternoon. Galante responded, “Your honor, I have witnesses available, and they cannot be called, for tactical reasons, this afternoon. [¶] But I am stating that in the presence of the jury over objection. I ask, again, to approach.” The jurors were excused for the afternoon.
After the jury was excused, Galante brought a mistrial motion on the grounds that the trial court had prejudiced her client’s right to a fair trial. The trial court had forced her to advise the jury she had witnesses but would not call them. The trial court responded, “I am telling you, Ms. Galante, I am within an inch of telling this jury that you are responsible for these delays. So your objection will be noted and will be denied.”
When court reconvened on September 15, the trial court indicated that it would move its preplanned vacation if the case was not completed by September 26. Galante was refusing to call defense witnesses prior to the end of the prosecution case. The trial court saw no tactical reason and thought it was an intentional act to obtain a mistrial. The trial court also ordered that trial was to start at 8:00 a.m. and that the parties would be sanctioned if they were late. While the trial court was giving its order, Galante was on the telephone. The trial court ordered her off the telephone and admonished her that she was being rude. It stated it was willing to extend the case so that Will could put on his defense.
The trial court indicated at one point that it felt like a kindergarten teacher. It also criticized the conduct of both Ruiz and Galante, who were not acting like experienced lawyers and were engaging in unnecessary discussions.
During discussion of stipulations that Galante had originally agreed to sign but was now refusing to sign, the trial court told her that she was to only answer yes or no to its questions, or she would be held in contempt. Galante demanded to call appellate counsel. The trial court fined her $100 and asked her if she was going to answer. At that point, Ruiz stated that Galante was on her cellular telephone and was not answering the trial court. The trial court said, “You are not making a phone call in this court.” The trial court continued to ask Galante if she was going to sign the stipulations. She responded, “You Honor, I am calling appellate counsel. I am in danger of being taken into custody. I want my lawyer.” The trial court responded, “No, you’re not being taken into custody. This is a monetary sanction....”
During redirect examination of Greene, Galante asked several questions that brought sustained objections by the trial court. Finally, after Ruiz accused Galante of trying to elicit an inflammatory answer, the trial court stated, in front of the jury, “I have had enough with you. Sit down please and ask a question that is not objectionable....” After what the trial court deemed to be a string of objectionable questions, it advised Galante, “Sustained. Sustained. You’re so far off base, it’s sustained.”
The $100 sanction was stayed pending completion of the case. The trial court eventually dismissed the fine.
2. Analysis
“[I]t is the duty of the judge to ‘control all proceedings during the trial, and to limit... the argument of counsel to relevant and material matters’ [citation]....” (People v. Bell (1989) 49 Cal.3d 502, 542.) This does not mean the court is “required to identify as misconduct, or correct sua sponte, improper prosecutorial argument.” (Ibid.; see also People v. Poggi (1988) 45 Cal.3d 306, 335.)
“When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client. And the error, where prejudicial, is reversible.” (People v. Fatone (1985) 165 Cal.App.3d 1164, 1175.) However, under both state and federal law, a showing of judicial bias is required for reversal of the verdict. (Compare Rose v. Clark (1986) 478 U.S. 570, 577 [106 S.Ct. 3101, 92 L.Ed.2d 460] [adjudication by biased judge is federal constitutional error reversible per se] and People v. Hefner (1981) 127 Cal.App.3d 88, 95, [judicial statements merely tending to show bias do not require reversal where conviction based on overwhelming evidence of guilt].)
Based on the foregoing, we cannot find bias on the part of the trial court. It was equally exasperated with both counsel. Moreover, it did not lose sight of the fact that the trial was about Will and Pierson. The brief statements made in front of the jury did not show bias.
We conclude that defendants were not denied a fair trial due the actions of either Ruiz or the trial court.
IV
CONDUCT OF WILL’S COUNSEL
Pierson claims that Galante’s conduct deprived her of a fair trial. Will claims for the first time in his reply brief that he received ineffective assistance of counsel.
A. Additional Factual Background
Pierson contends that Galante caused delay by arguing several mistrial motions Pierson contends were essentially frivolous. Pierson also points to the fact that, due to Galante’s refusal to sign the stipulations, Galante received a contempt fine, as set forth, ante. Pierson also claims that Galante was contributing to the delay and causing disruption in the trial, referring to the trial court noting the issue of the stipulations was a waste of time and most of the motions were frivolous, complaining that the case was no longer about the defendants and the victim, and commenting that it felt like a kindergarten teacher.
Pierson complains the trial was to end on September 23 but extended into October. The prosecution had rested but had two more witnesses to present. Galante refused to bring any witnesses until the prosecution had presented all of its witnesses. She refused to discuss the tactical reasons with the trial court. The trial court was on a preplanned vacation during the waiting time. Additionally, Pierson’s counsel wanted his jury to hear Will’s testimony if he chose to testify.
Pierson also objects to Galante’s handling of Will’s testimony. On September 30, 2005, Ruiz complained that Galante had made 87 objections during his cross-examination, most of which were overruled. The trial court agreed that many of the objections appeared to be for the purpose of throwing off the flow of cross-examination. Many of the objections were “ridiculous.” However, the trial court informed Galante she was free to continue with her objections.
The trial court also commented on how Galante had moved her chair near the prosecutor the day before during testimony presented to the Will jury only. It stated that it had never seen such “unprofessional” counsel. It then admonished counsel that they were not to move the podium and must ask to approach on every witness for the entire trial in front of the jury.
B. Analysis
“[C]onduct of counsel for a codefendant can violate a defendant’s constitutional rights....” (People v. Estrada (1998) 63 Cal.App.4th 1090, 1095-1096.) Review of a such claim is akin to that regarding prosecutorial misconduct. (Id. at p. 1096.) As such, “[a] federal constitutional violation occurs when the behavior of a [codefendant’s counsel] ‘”’comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”... ’”’ [Citation.]” (Ibid.)
Pierson admits that she did not object to the actions of Galante or Ruiz. Pierson argues that an objection by trial counsel would have been futile and that this court can nonetheless review the issue. Since we conclude that Pierson cannot show how her case was prejudiced by the actions of codefendant’s counsel, we will review the claim.
We conclude that Pierson’s claim that she was prejudiced by Galante’s conduct is meritless. Delays in her trial were caused not only by Galante, but also due to juror commitments and commitments of the trial court. Further, save the cross-examination of Will by Galante, all of Galante’s behavior occurred outside the presence of Pierson’s jury. Based on a review of the entire record, we cannot say that Pierson was denied a fair trial by Galante’s actions.
Moreover, the evidence of her guilt was overwhelming. Pierson somehow met Walker. She accompanied Will to Walker’s house as evidenced both by her statement to the police and by the fact that her fingerprints were found in the house. Pierson herself admitted that she knew Will carried a weapon. When they arrived at the house, one of them cut the telephone cords. Pierson gave differing accounts to the police as to how Walker was killed and her involvement therein. Pierson used Walker’s ATM card, the same one for which she said Will had gotten the PIN from Walker prior to his death. Pierson clearly had an incentive to kill Walker, as she had been in the house, and there is no doubt that they wanted to rob Walker. The evidence that Pierson and Will had set up Walker and planned to rob and kill him was overwhelming, and Galante’s actions did not prejudice Pierson.
For the first time in his reply brief, Will contends that he received ineffective assistance due to Galante’s actions. Although Will joined in Pierson’s arguments in her opening brief, Pierson had argued that the actions of Galante prejudiced her by delaying the proceedings in her case. Will at no time in his opening brief set forth that Galante provided ineffective assistance of counsel or any facts supporting such a claim. As noted by Will, he has the burden of showing ineffective assistance of counsel. As such, we will not address his claim raised for the first time in the reply brief.
Moreover, as we found for Pierson, the conduct of Galante did not prejudice Will. The actions by Galante for the most part occurred outside the presence of the jury. Although the trial court was exasperated by her conduct, it continued to recognize that the case was about defendants and afforded Will every possible protection of his right to a fair trial.
Finally, the evidence of Will’s guilt was also overwhelming. Will and Pierson were clearly involved in a relationship and had a history of working together to get things from Pierson’s “customers.” Will admitted knowing Walker and being at his house. Johnson testified, and reasonably could be believed by the jury, that Will told him about the Cadillac prior to Walker’s murder. Further, Will was in possession of Walker’s possessions after his murder, including the Cadillac and the watch. A tire-plug device, which Will admitted he carried, was found in the house and was one of the weapons used on Walker. Finally, the telephone cords were cut.
V
ADMISSION OF PIERSON’S POSTARREST STATEMENT
Pierson contends that the trial court erroneously admitted her postarrest statement because her statement was involuntarily made due to her extreme intoxication and the coercive tactics employed by the interviewing detectives.
A. Additional Factual Background
Pierson’s counsel made an oral motion to exclude Pierson’s statement made prior to trial because it was involuntarily made. The basis for the motion was that Pierson was so intoxicated on rock cocaine that it rendered her unable to resist the officer’s questions. Pierson’s counsel referred to a statement by Detective Lorton made during the preliminary hearing that he felt she was probably always under the influence and could have been under the influence during the questioning. Pierson’s counsel also referenced evidence from the interview that Pierson herself had admitted using rock cocaine at the time of the murder.
The prosecutor argued that, based on the totality of the circumstances, it was clear that Pierson was fully functioning and was able to recall many details of that day. Further, Pierson admitted that she could take more drugs and drink more than anyone she knew. Looking to the transcript of the interview, she was constantly talking and joking throughout the interview.
Pierson’s counsel argued it was clear she was intoxicated and that Detective Lorton should have discontinued the interview. Pierson’s counsel asked that the interview be excluded in its entirety based on the transcript, the tape, and the preliminary hearing transcript.
The trial court reviewed the transcript of the interview, listened to the audiotape, and read the preliminary hearing transcript. It noted the Pierson was able to speak; there was no mumbling; she did not nod off during the interview; and, although she was talking fast, her speech was not slurred. Further, her responses were consistent with the questions asked. Detective Lorton’s statements from the preliminary hearing also supported the voluntariness of the statement. Detective Lorton stated that he never heard Pierson slurring or mumbling. The court also noted that this was not an involuntary statement because Pierson gave at least three separate versions of what happened. The trial court did not believe that she was under the influence of drugs, and even if she was, it did not appear to affect the voluntariness of her statement.
Pierson’s statement was admitted into evidence.
B. Standard of Review
“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001) 26 Cal.4th 876, 920.) Where a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) “‘Under both state and federal law, the courts apply a “totality of circumstances” test to determine the voluntariness....’” (People v. Haley (2004) 34 Cal.4th 283, 298; see also People v. Bradford (1997) 14 Cal.4th 1005, 1041.)
Police are prohibited from using only those psychological ploys that, under all the circumstances, “‘are so coercive that they tend to produce a statement that is both involuntary and unreliable.’” (People v. Jones, supra, 17 Cal.4th at p. 298.) “In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576; see also People v. Holloway (2004) 33 Cal.4th 96, 114.)
On appeal, “‘the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to voluntariness of the confession is subject to independent review.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 471.)
C. Analysis
Here, we believe that the trial court properly determined that Pierson’s statement was voluntarily made. After reviewing the transcript and listening to the audiotape that the trial court reviewed, it is clear that, to the extent that Pierson had taken any drugs, they did not affect her ability to respond to the detectives’ questions. Further, the record does not support that the detectives used coercive or deceptive tactics in interviewing Pierson. Throughout the interview, the detectives were calm. Pierson herself changed her story without pressure from the detectives. Although Pierson was noticeably tired, she never complained to the detectives. Based on the totality of the circumstances, we conclude the trial court properly ruled that Pierson’s statement was voluntarily made.
The People refer to a videotape of the interview, but the trial court only reviewed the audiotape and transcript in reaching its decision.
VI
ADMISSION OF SURREPTIOUSLY RECORDED DISCUSSIONS BETWEEN WILL AND PIERSON
Pierson, presumably joined by Will, contends that the trial court erred by admitting the tapes of the van and whispering conversations because they were essentially inaudible and therefore speculative evidence.
A. Additional Factual Background
Prior to trial, Will’s counsel sought to exclude the whispering and van conversations. Pierson joined in the request. Both argued that they were inadmissible hearsay.
Pierson’s counsel later objected to the enhancement of the whispering conversation and did not agree that the transcript was accurate. The best evidence was the tape. Pierson’s counsel also objected that, based on the unintelligible portions, the transcript was incomplete. There was no way to have context for the conversation and admissions. It was misleading to the jury for the purpose it was being admitted: to show defendants were conspiring together on their story. The jury would speculate as to what they said.
Pierson’s counsel asked that it be excluded. The trial court felt the tape should be played, and the jury should have the transcripts. It offered to admonish the jurors that they were not to speculate as to the unintelligible portions.
Pierson’s counsel admitted that the transcript and the tape matched but still objected to the admission of the tape and transcript on the grounds that, since there were several inaudible portions, it did not give sufficient context. The trial court allowed the tapes to be played to the jury, as outlined in part II, ante, and they received transcripts for both tapes.
B. Analysis
“Relevant evidence” is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
“‘“To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness.” [Citations.]’” (People v. Polk (1996) 47 Cal.App.4th 944, 952.) “[A] partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape’s relevance is destroyed. [Citations.]” (Ibid.)
We have listened to the tapes. We acknowledge that the tapes are difficult to hear. However, the damaging information contained in the tapes (that Will said that Pierson told him to kill Walker, that her story about self-defense was “bullshit” and that he told her to stop talking to the police) all is clearly intelligible. Moreover, the jury was repeatedly admonished that they were to rely on the tapes as the evidence. The jury was in the best position to determine what was being said on the tapes and were instructed that they could listen to the tapes during deliberations. We therefore cannot conclude that the tapes should have been excluded on the ground that they were unintelligible.
Finally, even if the evidence should have been excluded, any error was harmless. Error is reversible if it is prejudicial, i.e., if it is reasonably probable the verdict was affected by the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Initially, the trial court instructed the jurors to not speculate regarding what was not transcribed or was inaudible on the tapes. We presume the jurors followed the instructions and did not speculate as to the missing information. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
Furthermore, the whispering tape only disclosed that Pierson was making up her story about self-defense. Based on her statement to police, the jury already could determine that she might be lying, as she had given the police two different stories as to the events that occurred that night. There were no statements in the van conversation that prejudiced Pierson. We conclude that admission of the whispering and van conversations was proper, and even if it was error, it was harmless.
Although Will joined in Pierson’s arguments that benefit him, he has made no argument as to how the admission of the van and whispering conversations were prejudicial to him. As such, we will not address it on our own.
VII
INSTRUCTIONAL ERROR ON AIDING AND ABETTING
Pierson contends that the jury was erroneously instructed with CALJIC No. 9.40.1, pertaining to the duration of robbery, as it related to aider and abettor liability. Pierson also appears to contend that the jury was not properly advised as to the possibility of a conviction for second degree murder.
A. Additional Factual Background
During deliberations, the jury inquired, “Can the judge clarify the exact meaning of ‘intent.’” In response, the trial court asked, “Court needs to know what ‘intent’ you are speaking about.” The jury responded, “Can we get clarification on whether the defendant being a witness & not stopping the crime or reporting it still constitutes aiding and abeting [sic].” The trial court, after consulting with Pierson’s counsel, responded, “Please see CALJIC 3.00, 3.01, 3.02, 3.03, 8.27, 8.80.1, 9.40.1, 14.54.” The jury then inquired, “Does the option of 2nd degree murder exist for us if so can you elaborate on sections 8.47 & 8.30.” The trial court responded, “Both 8.30 & 8.47 are lesser charges to count one and are for your consideration. See CALJIC 17.10.” The jury then asked, “Does intent matter in refference [sic] to the act of the aide provided in consideration of aiding and abeting [sic].” The judge responded, “Please review the following instructions 3.00, 3.01, 3.02, 3.03.” The jurors then inquired, “If she was in shock and/or scared when she wrote down the PIN and did not have the intent to use it (if the act was reflexive). If the intent was not to aide, is the act still considered aiding in refference [sic] to the last sentence in section 9.40.2.” The trial court responded, “In order to be an aider and abettor you must have both intent and act before or during the commission of a crime. If the intent was not formed until after the crime was committed the person is not an aider & abettor.”
B. Analysis
Here, the jury was instructed with the standard instructions for aiding and abetting, including CALJIC Nos. 3.00, 3.01, and 3.03. CALJIC No. 8.27 was also given, which advised the jurors that in order to be guilty of murder as an aider and abettor, Pierson and Will had to have been jointly engaged in the commission of burglary or robbery at the time the fatal wound was inflicted. However, inexplicably, Pierson’s counsel agreed to the giving of CALJIC No. 9.40.1, the standard instruction when someone is charged with robbery, as to the duration of robbery in determining intent as an aider and abettor.
CALJIC No. 9.40.1 as given to the jury stated: “For the purposes of determining whether a person is guilty as an aider and abettor to robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety.” Pierson did not object to CALJIC No. 9.40.1 in the trial court. We are authorized to review defendant’s claim of instructional error on appeal pursuant to section 1259. (People v. Duran (2001) 94 Cal.App.4th 923, 942.)
“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) We agree with Pierson that CALJIC No. 9.40.1 had no application in the present case because Pierson was not charged with robbery alone and was only guilty if she shared Will’s intent to kill Walker and commit robbery prior to his death.
We must next decide whether the error in giving CALJIC No. 9.40.1 was prejudicial under the Watson test. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Guiton, supra, 4 Cal.4th at p. 1130.) Under Watson, giving a jury instruction on an unsupported theory constitutes reversible error “only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and invalid ground, there would be no prejudice, for there would be a valid basis for the verdict.” (Guiton, at p. 1130.) To determine the basis for the guilty verdict, we must examine the entire record, including “the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.” (Ibid.)
Having reviewed the entire record, we conclude that giving CALJIC No. 9.40.1 did not constitute prejudicial error. Even if the instruction would have allowed the jury to convict defendant of after-acquired intent to commit robbery, there is no indication from the record that it did so. Pierson’s counsel argued that Pierson had to acquire the intent to kill Walker before Will struck the first blow. Further, Pierson completely ignores that the trial court clarified, prior to their verdict, that “[i]n order to be an aider and abettor you must have both intent and act before or during the commission of a crime. If the intent was not formed until after the crime was committed the person is not an aider & abettor.” Any possible confusion that was occasioned by the jury being instructed with CALJIC No. 9.40.1 was cleared up by the trial court’s final response to the jury.
In addition, the jury was instructed that they had to conclude that Pierson was engaged in robbery at the time of the killing in order for the special circumstance to be found true. Hence, in finding the special circumstance true, the jury necessarily had to conclude that the intent to commit robbery preceded Walker’s death.
At oral argument, Pierson’s counsel argued that since the jury found her not guilty of the burglary special circumstance — they rejected that she went to Walker’s home with the intent to commit a felony therein (see § 459) — this was further evidence that they found her guilty of first degree murder based on after-acquired intent to commit robbery. It is true that Pierson was found not guilty of the special circumstance that the murder was committed during burglary. However, we disagree that this had any effect on the prejudice analysis here. The jury found Pierson guilty of the robbery special circumstance, which required that the jury find that Pierson “with the intent to kill or with reckless indifference to human life, so that the major participant aided, abetted, or assisted in the commission of the crime of [robbery] which resulted in the death of a human being.” Further, the jury was instructed that it must find Pierson was engaged in the commission of robbery and that she had to be jointly engaged in the commission of burglary or robbery at the time the fatal wound was inflicted (CALJIC No. 8.27). Hence, since the jury rejected burglary, they had to conclude that Pierson had the intent to commit robbery while still in the house (prior to or at the time the fatal blow was inflicted) and not based on an after-acquired intent. As such, the jury could find (as argued in detail, post, in response to Pierson’s claim the evidence was insufficient to support the robbery special circumstance) that Pierson acquired the intent to rob Walker prior to the fatal blow, even if they rejected that she had the intent to rob or kill Walker when she first went to his home.
Although the jury was instructed that the burglary continued until the perpetrator reached a place of temporary safety, it had to find that Pierson intended to rob or kill Walker upon entry into his house.
We have found nothing in the record to show that the sole basis of the verdict of guilty of aiding and abetting Walker’s murder was based on after-acquired intent to steal. The error in giving CALJIC No. 9.40.1 was not prejudicial, and therefore reversal is not required.
Pierson additionally contends that the trial court erred by erroneously responding to the jury’s question regarding second degree murder. We disagree that the trial court gave the erroneous impression that the lesser offenses were an option if it felt that Pierson was less culpable. The jury was fully instructed on second degree murder. Moreover, we agree with the People that People v. Woods (1992) 8 Cal.App.4th 1570, 1585-1587 is inapplicable here because once the jury found Pierson guilty of aiding and abetting robbery (which they did by finding her guilty of the special circumstance) they were obligated to find her guilty of first degree murder.
We reject that the instructions or responses by the trial court resulted in any prejudice to Pierson. Moreover, as stated ante, the evidence of Pierson’s guilt was overwhelming.
VIII
SUFFICIENCY OF THE EVIDENCE OF THE ROBBERY-MURDER SPECIAL CIRCUMSTANCE
Pierson, presumably joined by Will, contends that there was insufficient evidence presented to support the robbery murder special circumstance.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘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 beyond a reasonable doubt.” [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.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
The robbery-murder special circumstance applies to a murder “committed while the defendant was engaged in... the commission of, [or] attempted commission of” robbery. (§ 190.2, subd. (a)(17)(A).) “[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.” (People v. Mendoza (2000) 24 Cal.4th 130, 182.) To prove a robbery-murder special circumstance, the prosecution must prove the defendant formed the intent to steal before or while killing the victim. (People v. Valdez (2004) 32 Cal.4th 73, 105.)
A person can be convicted of the special circumstance as the actual killer. If a person is not the killer, a person who possesses the intent to kill as an aider and abettor can also be found guilty of the special circumstance. Finally, a major participant in an underlying felony coupled with reckless indifference to human life can sustain a special circumstance finding. (Tison v. Arizona (1987) 481 U.S. 137, 146-158 [107 S.Ct. 1676, 95 L.Ed.2d 127].)
As established, ante, we believe the evidence was sufficient to show that the jury found that Pierson aided and abetted the robbery prior to Walker’s murder to sustain her first degree murder conviction. We agree with Pierson that the prosecution had the additional requirement of proving for the robbery/murder special circumstance that Pierson participated in the robbery with the intent to kill or acted with reckless indifference to human life and as a major participant. We agree that there was no evidence that Pierson was the one who killed Walker. As such, she was only guilty of the special circumstance as an aider and abettor if she possessed the intent to kill or acted with reckless indifference to life as a major participant in the robbery.
Pierson rejects out of hand that the evidence was sufficient to prove that defendant intended for Walker to be killed. We disagree. Based on Pierson’s statement to police alone, the jury could reasonably conclude that she was in on the plan to rob and kill Walker. Pierson stated herself that she and Will had been at Walker’s house before showing that they had the chance to see what was in the house. Further, the physical evidence supports that Pierson had the intent to kill. The telephone lines at Walker’s home were cut. There would be no reason to cut the telephone lines after Walker was killed. It is reasonable evidence that their intent when they went to the house was to rob and kill Walker. Although Pierson claims she spent much of her time in the bathroom while Will stabbed Walker, the jury could reject that claim and find that she participated or shared Will’s intent. Pierson admitted that she obtained Walker’s PIN. Based on the foregoing, the jury could conclude that she shared Will’s intent to kill Walker.
Moreover, additional evidence was presented that supported Pierson had the intent to kill. Will testified before Pierson’s jury that he said during the whispering conversation to Pierson, “You told me to kill him.” The jury listened to the audiotape of the conversation and could determine on its own if that is what Will said to Pierson. Further, although Will testified that the statement was not true, the jury was in a position to independently evaluate the statement. It certainly could believe that the statement had been made and that Pierson wanted Walker killed because she was going to be tied back to the location, as argued by the prosecutor.
Although Pierson states that the only way that she could be found guilty of the special circumstance based on her wanting Walker to be killed was through speculation, that is not true. There was solid evidence before the jury that Pierson wanted Walker killed.
Finally, Pierson claims the evidence was insufficient to support that she acted with reckless indifference to Walker’s life and was a major participant in the robbery.
Here, there were several theories upon which the jury could have concluded that Pierson was a major participant and acted with reckless indifference to human life. Initially, there was no dispute that the telephone cords were cut at Walker’s home. It is possible that the jury concluded that Pierson herself cut the cords, thereby cementing the possibility that she harbored the intent to kill Walker. Assuming that Pierson came to the house with no intent to rob or kill Walker, she certainly would have become aware that Will had such a plan when he cut the cords.
Furthermore Pierson was the one who got them access into Walker’s home. The jury also could reasonably infer that Pierson assisted in getting the PIN from Walker. Pierson admitted that Will was hurting Walker while he forced him to give out his PIN. Pierson assisted by writing down the number. Walker was bleeding and moaning. Pierson knew that Walker had carried a knife in the past and now had a tire-plug device.
Pierson claims the jury concluded that she only participated in the robbery by using the ATM card. This completely ignores the evidence that it was Pierson who likely gained defendants access into Walker’s home. At that point, the telephone lines were cut. The jury could then reasonably conclude that Pierson stood at the ready to write down Walker’s PIN while Will “beat it out” of him. We find that the evidence amply supports the robbery-murder special circumstance as to Pierson.
To the extent that Will is making the same claim, we reject that the evidence was insufficient as to him. In proving the special circumstance against Will, who was the actual killer, the jury only had to conclude that Will had an independent purpose for the commission of the felony that was not merely incidental to an intended murder. (People v. Mendoza, supra, 24 Cal.4th at p. 182.) The evidence that Will was guilty of the special circumstance was overwhelming. Will himself admitted that he killed Walker. Since Will and Pierson had clearly “befriended” Walker, as he gave them access to his home, they could have robbed him without resorting to killing him. Moreover, based on the wounds received by Walker, this was more than a killing just incidental to a robbery. The evidence supports the special circumstance finding as to Will.
IX
PAROLE REVOCATION FINE
Will and Pierson both argue, and the People agree, that since neither received a sentence that includes a period of parole, the $10,000 parole revocation fines were incorrectly imposed. We agree. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186.) These provisions in the abstract of judgment and the minute order are clerical error and should be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188.)
X
CLERICAL ERROR
The People indicate that the minute order for October 6, 2005, the date the jury verdict was received in Pierson’s case, is incorrect because it states that Pierson was convicted of the burglary-murder special circumstance rather than the robbery-murder special circumstance. According to the jury verdict, they found the burglary-murder special circumstance not true and found the robbery-murder special circumstance true. The minute order reflects the opposite finding. The abstract of judgment does not include the erroneous notation. We can correct this merely clerical error on appeal. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
XI
DISPOSITION
The judgment is modified to strike the parole revocation fines imposed pursuant to section 1202.45. The trial court is directed to amend the abstracts of judgment to remove the parole revocation fines and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation. The trial court is also directed to amend its minute order in Pierson’s case for October 6, 2005, to reflect that the jury found Pierson guilty of the robbery-murder special circumstance under section 190.2, subdivision (a)(17)(A).
The judgment is affirmed as modified.
We concur: GAUT J., KING J.