Opinion
G042851 Super. Ct. No. RIF106251
11-18-2011
THE PEOPLE, Plaintiff and Respondent, v. RICARDO RUIZ, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Riverside County, Helios J. Hernandez, Judge. Affirmed as modified.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Ricardo Ruiz was sentenced to life in prison without parole for aiding and abetting the murder of 13-year-old Markess Lancaster. His chief complaint on appeal is that the trial court failed to properly instruct the jury on all of the legal principles applicable to the case. He also contends the trial court violated his right to be present at trial, his attorney was ineffective, and the abstract of judgment contains a clerical error. Defendant is right about the clerical error, but other than to correct that error, we affirm the judgment in all respects.
FACTS
Defendant was a leading member of a Hispanic criminal street gang called Eastside Riva (Eastside). In July 2001, he was shot by a suspected member of the 1200 Bloc Crips (Crips), which is an African-American gang. As a result of the shooting and other ongoing conflicts between Eastside and the Crips, tension between the two gangs was high on October 5, 2002, when the present case arose.
That day, defendant was riding in a pickup truck with four other Eastside members. Zeus Serrano was driving, with defendant and Daniel Salgado alongside him in the front seat, and Robert Ariza and Jesus Gomez were in the backseat of the truck. While they were at a liquor store, a Camaro with three African-Americans pulled into the parking lot. Tyshawn Guidry was the driver; Raymond Atkins was in the front passenger seat; and Markess Lancaster, Guidry's 13-year-old brother, was in the back seat.
The two groups made eye contact in the parking lot, and as the Camaro was leaving, the occupants of the pickup truck began flashing gang signs out their windows. The truck then followed the Camaro as it made its way onto the roadway. Sensing danger, Guidry tried to lose the truck by speeding through several red lights. However, he couldn't shake the truck. When Guidry slowed down to make a right-hand turn, the truck pulled alongside him, and Salgado fired five or six shots at the Camaro. One of the shots struck Lancaster in the chest, fatally wounding him.
In the wake of the shooting, defendant and his companions were charged with a variety of crimes, including first degree murder and attempted premeditated murder. In order to avoid a possible prison sentence of life without parole, Gomez pleaded guilty in exchange for a sentence of 25 years to life. He also agreed to testify for the prosecution at defendant's trial.
Gomez testified that on the night before the shooting, he, Serrano and defendant stayed up most of the night smoking methamphetamine and partying. At one point during the evening, they got into an altercation with another group of people at a nightclub, and defendant pulled out a handgun and tried to fire it into the air. However, the gun malfunctioned, and nothing more came of the incident.
The next morning, they picked up Ariza and Salgado and went to the liquor store. When they saw the Camaro, they thought the people inside might be Crips. Still, they didn't do anything until the occupants of the Camaro started flashing gang signs at them. At that point, defendant and Salgado said they wanted to "get those guys," and Serrano followed the Camaro out of the parking lot. During the ensuing chase, defendant told Ariza to "get the gun." Ariza then obtained a handgun from a compartment in the backseat where Serrano kept a gun. Ariza handed the weapon to defendant, and he passed it along to Salgado, who fired it at the Camaro several times.
During his testimony, Gomez claimed he never saw a gun in the Camaro, and there was never any discussion in his vehicle about the people in the Camaro having a gun. However, before trial, Gomez had told investigators that during the chase, Atkins appeared to be reaching around in the side pocket of his door, and when Gomez saw that, he yelled out to his companions in the truck, "I think they're reaching for something." Gomez also initially told investigators he was the one who shot Lancaster, but he later admitted Salgado was the shooter.
Defendant testified he was not with Gomez and Serrano on the night before the shooting. However, he did admit smoking methamphetamine that evening. He also said he continued smoking and had about "20 to 30" beers on the morning of the shooting and was thus "high" throughout the entire encounter with the victims. Describing the initial contact at the liquor store, he said that when the victims starting flashing Crip hand signs, he began making Eastside signs in response. However, he didn't think anything was going to come of the situation because "they had a kid (Lancaster) in the car." Defendant claimed the Camaro followed his group when they left the parking lot, not the other way around. Then, during the ensuing chase, he continued making hand signs toward the victims, although he did not know where their car was at all times. In fact, he was trying to spot the Camaro in the truck's rear view mirror when he heard the shots ring out. The shots took him totally by surprise; he did not know who fired them or where they came from, and he did not know that anyone in either vehicle even had a gun.
Travis Lawson was working outside his house when the shooting occurred. After the initial shots, he looked up and saw a black man hanging out the window of a car firing a handgun in the direction of a pickup truck. A possible bullet mark was found on a wall in the area, which supported Lawson's testimony in this regard. However, Guidry and Atkins testified that no one in their car had a gun.
In addition to instructing on self-defense, the trial court also gave instructions on heat of passion and voluntary intoxication. However, the jury convicted defendant of first degree murder and two counts of willful, deliberate and premeditated attempted murder. It also convicted defendant of conspiracy by a gang member to commit murder, discharging a firearm from a vehicle, and discharging a firearm at an occupied vehicle. As to the murder count, the jury found true special circumstance allegations that the shooting was racially and gang motivated and was perpetrated by means of discharging a firearm from a motor vehicle. The court sentenced defendant to multiple life sentences, including life in prison without the possibility of parole on the murder count.
I
During the trial, defendant was absent one day due to sickness. He contends the court's decision to proceed with the trial in his absence amounted to a prejudicial violation of his state and federal rights. We disagree.
Defendant's trial lasted 11 days. On the morning of the ninth day of trial, defense counsel, with defendant present, made the following representations to the court: "[W]hen I arrived here in court, I had the opportunity to chat with [defendant] and indicate to him that very well he may be testifying today. We were prepared to go today; however, [defendant] is telling me he's not feeling 100 percent, feels he cannot give his best testimony [because] there is a flu going around . . . the jail[.] . . . [N]ormally, when [defendant] comes in and I have him here in court with me he's bright; he's not today. I would give him the benefit of the doubt. I talked about him remaining through the playing of Mr. Gomez's [pretrial] statement [to investigators] and for anticipated [defense] witnesses Lawson and [Michael] Smith. And with my advice and counsel he will waive his presence for today and go back and get ready for Monday."
When the prosecutor said she did not object to proceeding in defendant's absence, the trial court accepted defense counsel's waiver. Defendant was then removed from the courtroom and taken back to the jail for treatment. After that, the jurors were seated and the judge informed them that, due to sickness, defendant would be absent from the proceedings that day.
Three witnesses took the stand that day. Lawson testified he saw a black person fire shots from the Camaro toward the truck in which defendant was riding. Smith testified that following the shooting, he noticed a strike mark on a wall outside his home that he had never seen before. And Jaime Estrada, an investigator with the Riverside District Attorney's Office, testified that before trial, he and the prosecutor interviewed defendant about the shooting. During Estrada's testimony, an audio tape of the interview was played for the jury.
In closing argument, defense counsel argued the location of the mark was consistent with Lawson's testimony about the shots coming from the Camaro.
The law is well established. "[A] defendant has a federal constitutional right, emanating from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, to be present at any stage of the criminal proceedings 'that is critical to the outcome if his presence would contribute to the fairness of the procedure.' [Citations.] In addition, a defendant has the right to be personally present at critical proceedings, pursuant to the state Constitution [citations], as well as pursuant to statute [citations]." (People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357.)
The Attorney General argues defendant waived his statutory right to be present because he was "voluntarily absent" from his trial. (Pen. Code, § 1043, subd. (b)(2).) The Attorney General may have a point. Defendant was not absent because he was seriously ill; he was absent because he was "not 100%" and his attorney wanted him "bright" for the next day. But there is no evidence defendant was faking illness in a deliberate attempt to absent himself from the proceedings, so we are inclined to give him the benefit of the doubt. (People v. Hines (1997) 15 Cal.4th 997, 1040 [absent evidence of malingering, there was insufficient basis to find defendant who claimed sickness was voluntarily absent from proceedings].)
All further statutory references are to the Penal Code.
The Attorney General also contends defense counsel validly waived defendant's right to be present. In People v. Davis (2005) 36 Cal.4th 510, 532, the California Supreme Court recognized there may be instances where defense counsel can waive his client's presence. However, the court cautioned, "At a minimum, there must be some evidence that defendant understood the right he was waiving and the consequences of doing so. [Citation.]" (Ibid., fn. omitted.) It will not suffice if defense counsel simply represents to the court that he has discussed the subject proceeding with defendant and defendant has agreed to waive his presence. (Ibid.) Yet, that is essentially all that defendant's attorney did in this case. Because "[t]here is no evidence that defense counsel informed defendant of his right to attend the [trial] . . . [and no] evidence that defendant understood that by absenting himself from the [trial] he would be unable to contribute [to the proceedings] . . . we cannot conclude [he] knowingly and intelligently waived his right to presence at the [trial]." (Ibid.)
Still, we do not believe defendant's absence from one day of his trial warrants a reversal of the judgment. Defendant argues the mere taking of testimony in his absence requires reversal, but the law is to the contrary. Our Supreme Court has recently explained that, in order to justify a reversal based on a violation of the defendant's right to be present at trial, "'"[t]he defendant must show that any violation of this right resulted in prejudice or violated the defendant's right to a fair and impartial trial. [Citation.]" [Citation.]' [Citations.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1234.)
Defendant makes no such showing. He alleges - without further elucidation - that the day he was sick, "critical portions of the trial" occurred in his absence. But two of the people who testified that day, Lawson and Smith, were called by the defense. Not only did they testify in favor of defendant, their testimony was very brief, taking up less than 35 pages of the reporter's transcript combined. And the third witness, Investigator Estrada, hardly testified at all. He was called to the stand for the simple purpose of laying the foundation for the introduction of the interview which he and the prosecutor conducted with Gomez before trial. As that interview contained statements that impeached Gomez's trial testimony in various respects, it too was favorable to the defense. Moreover, the statement was made available to the defense before trial, so defendant had ample opportunity to review it with his attorney. All things considered, we do not believe defendant's absence from one day of his trial resulted in prejudice or violated his constitutional rights in any manner whatsoever. Therefore, his absence is not cause for reversal.
II
In instructing on self-defense, the trial court told the jury that defense applied if "the defendant" reasonably believed he was in imminent danger of being killed. However, since he was prosecuted as an aider and abettor, defendant contends that, with respect to the attempted murder counts, the jury should also have been instructed to consider the state of mind of the shooter Salgado in determining whether self-defense applied. We disagree.
In particular, the court instructed self-defense applied to the charged offenses if 1) "the defendant" reasonably believed he was in imminent danger of being killed, 2) "the defendant" reasonably believed the immediate use of deadly force was necessary to defend against that danger, and 3) "the defendant" used no more force than was reasonably necessary to defend against that danger.
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As a preliminary matter, the Attorney General argues defendant waived his right to complain about any defects in the court's self-defense instruction because he did not object to it at trial. However, as the instruction allegedly violated defendant's basic right to defend against the charges, it is reviewable notwithstanding his failure to object. (§ 1259.) Therefore, we will proceed to the merits.
Defendant challenges the court's instruction on self-defense in a very specific context, as it relates to the crime of attempted murder. As noted above, the jury convicted defendant of two counts of attempted murder within the meaning of sections 189 and 664. The jury also found the attempted murder fell within the terms of section 664, subdivision (a), which provides: "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).)
In People v. Lee (2003) 31 Cal.4th 613, our Supreme Court held this provision requires only that the murder that was attempted was willful, deliberate and premeditated, not that every person involved in the murder acted with this mindset. Therefore, a defendant can be sentenced to life in prison for aiding and abetting a premeditated murder, even if he did not personally act willfully and with deliberation and premeditation. (Id. at p. 627.)
Defendant interprets People v. Lee, supra, as making the perpetrator's mental state wholly dispositive for purposes of deciding an aiding and abettor's culpability. If that were true, defendant could not be liable for a greater offense than the shooter Salgado, and the trial court would have been required to instruct the jury to consider Salgado's state of mind in determining defendant's culpability. However, as the case of People v. McCoy (2001) 25 Cal.4th 1111 (McCoy) makes clear, that is not the law.
In McCoy, the Supreme Court explained an aider and abettor's culpability can exceed that of the perpetrator in some instances. That's because an aider and abettor's liability is not completely dependent on the culpability of the perpetrator. "'[A]lthough joint participants in a crime are tied to a "single and common actus reus," "the individual mentes reae or levels of guilt of the joint participants are permitted to float free and are not tied to each other in any way. If their mentes reae are different, their independent levels of guilt . . . will necessarily be different as well."' [Citation.]" (McCoy, supra, 25 Cal.4th at pp. 1118-1119.) In other words, an aider and abettor's "mental state is her own; she is liable for her mens rea, not the other person's." (Id. at p. 1118.)
Accordingly, if the mens rea of the aider and abettor is more culpable than the perpetrator's, i.e., there is evidence of a defense that is personal to the perpetrator, the aider and abettor may be guilty of a more serious crime than the perpetrator. (McCoy, supra, 25 Cal.4th at p. 1122.) An aider and abettor does not get the benefit of defenses that are pertinent only to the person who carries out the crime. (Ibid. [aider and abettor could properly be convicted of murder even if actual perpetrator acted in unreasonable self-defense and was thus guilty only of manslaughter].)
Therefore, the trial court did not err in failing to instruct the jury to consider Salgado's mental state in assessing the applicability of self-defense to the attempted murder charges. As that defense only applied if defendant reasonably believed he was in imminent danger of being killed, Salgado's perception of the danger posed was immaterial.
Defendant makes the same argument with respect to the instructions on heat of passion and attempted voluntary manslaughter, to wit: Because Salgado may have acted in heat of passion, the court should have instructed the jury to consider Salgado's state of mind in determining whether that mitigating circumstance applied to reduce the attempted murder charges to attempted voluntary manslaughter. However, as McCoy, supra, makes clear, even if Salgado attempted to kill in the heat of passion, thus negating malice as to him, Salgado's heat of passion would not negate malice as to defendant because he is liable for his own mens rea, not Salgado's. The trial court was thus not required to instruct the jury to consider whether Salgado acted in the heat of passion in shooting the victims.
III
Defendant also contends the court erred in failing to instruct on imperfect self-defense. He claims the instruction was warranted because there was substantial evidence he and Salgado acted out of an unreasonable belief in the need for self-defense. For the reasons explained above, Salgado's state of mind has no bearing on the applicability of imperfect self-defense as to defendant. (McCoy, supra, 25 Cal.4th at p. 1123.) Therefore, we look only to the evidence of defendant's mental state in determining whether instructions on that defense were warranted.
For a killing to be in "perfect self-defense," the defendant "must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.) However, our Supreme Court has cautioned the doctrine of imperfect self-defense is a "narrow" one. (In re Christian S. (1994) 7 Cal.4th 768, 783.) It "requires without exception that the defendant must have had an actual belief in the need for self-defense." (Ibid., italics added.)
Defendant argues the jury could have reasonably found he harbored such a belief, based on the evidence indicating that: 1) The victims initiated the exchange of gang signs; 2) the Camaro was chasing the pickup truck prior to the shooting; 3) during the chase, Gomez saw Atkins reaching for something in his door pocket and warned his fellow passengers; and 4) shots were fired from the Camaro toward the truck.
Although there was evidence the victims initiated the exchange of gang signs, defendant testified he was not angry or concerned about this because the victims had "a kid," i.e., Lancaster, in their car. Defendant simply did not think anything was going to happen under those circumstances. Defendant was somewhat surprised when the Camaro followed them from the liquor store. However, that did not seem to bother him much either because during that time he continued to flash gang signs toward the Camaro. And while Gomez told police he yelled out that someone in the Camaro was reaching for something, defendant testified that no one in his vehicle said anything during the chase. So that means either Gomez didn't really say that, or defendant didn't hear him; either way, the alleged statement is irrelevant as to what defendant was thinking before the shooting.
So is the evidence indicating shots were fired from the Camaro toward the truck. Defendant was not expecting the shots, he did not see any weapons beforehand, and he had no idea where the shots came from or who fired them. He did testify the shots scared him, but there is no evidence he believed he was in imminent danger before the shots were fired. Accordingly, the trial court did not error in failing to instruct on unreasonable self-defense.
IV
Next, defendant correctly points out that an aspect of the trial court's instruction on attempted voluntary manslaughter was incorrect. Nevertheless, we do not believe this error was likely to cause the jury to misunderstand the law pertaining to that offense.
The trial court instructed the jury on attempted voluntary manslaughter based on the theory of heat of passion. At the outset of the instruction, the court stated that attempted voluntary manslaughter is a lesser-included offense of attempted murder. It then explained, "An attempted killing that would otherwise be attempt[ed] murder is reduced to attempt[ed] voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel, or in the heat of passion." After that, the court explained the requirements for heat of passion to apply, and then it concluded the instruction by saying, "The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as the result of a sudden quarrel or heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter.'" (Italics added.)
As the Attorney General concedes, the final sentence of the instruction was incorrect. The jury should have been told that if the People did not meet their burden of proving heat of passion did not exist, then it must find defendant not guilty of attempted murder. (See CALCRIM No. 603.) However, as we now explain, the error does not warrant a reversal of the judgment.
On review, jury instructions "'should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) We "'"assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]"' [Citation.]" (Id. at p. 1111.) In determining whether instructional error has occurred, we must consider the record as a whole, including the specific language challenged, other instructions given, and the arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191.) Unless there is a reasonable likelihood the jury misunderstood the challenged instruction in a manner that violated defendant's rights, we must uphold the court's charge to the jury. (Ibid.)
Here, the opening lines of the court's instruction on attempted voluntary manslaughter properly informed the jury that heat of passion reduces the crime of attempted murder to the lesser-included offense of attempted voluntary manslaughter. The prosecutor also reiterated this point in her closing argument to the jury. And, the trial court correctly informed the jury the prosecution had the burden of proving heat of passion did not exist. On this record, the jurors would have known that if the People did not meet their burden in this regard, they would have to find defendant not guilty of attempted murder. The court's isolated statement to the contrary is not cause for reversal.
V
Defendant also takes aim at the trial court's instructions on voluntary intoxication. He claims the instructions were incomplete because they did not allow the jury to consider his intoxication in deciding whether he 1) acted in the heat of passion and 2) had the requisite intent for aiding and abetting premeditated murder and attempted premeditated murder. The claim is not well taken.
Pursuant to CALCRIM No. 3426, the trial court instructed the jurors, "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the specific intent required." After explaining the difference between general and specific intent, the court identified three lesser-included offenses as requiring general intent; to wit, involuntary manslaughter, assault with a firearm and simple assault. The court then informed the jury that all of the other crimes and allegations required specific intent.
From these instructions, the jury would have known that voluntary manslaughter and attempted voluntary manslaughter were specific intent offenses. And because heat of passion was the key aspect of those offenses, the jury would have known it could consider defendant's alleged intoxication in deciding whether he was guilty of voluntary manslaughter and attempted voluntary manslaughter, as opposed to murder and attempted murder. Deriving this information from the court's instructions was simply a matter of correlating the subject instructions, which the jury was capable of doing.
As for the element of premeditation, the evidence, instructions and arguments of counsel all made it abundantly clear defendant was being prosecuted for premeditated murder and attempted premeditated murder under the theory of aiding and abetting. As explained above in section II, defendant did not have to personally act with premeditation to be guilty of attempted premeditated murder under this theory. Therefore, the trial court was not required to instruct the jury to consider defendant's intoxication in deciding whether the attempted murder was premeditated. (People v. Lee, supra, 31 Cal.4th 613.)
Regarding the charge of premeditated murder, the jury was instructed that in order to find defendant guilty of that offense, it must find not only that the shooter Salgado acted with premeditation, but that defendant shared that specific intent in assisting him. In other words, the jury was required to find as an element of premeditated murder that defendant acted with premeditation in his own right. And since premeditated murder was regarded in the instructions as a specific intent offense, the jury would have known it could consider the evidence of defendant's intoxication in deciding whether he acted with premeditation. No further instructions were required.
VI
The prosecution relied on two theories of first degree murder: premeditation and discharging a firearm from a vehicle. Defendant contends the court prejudicially erred in instructing on the latter theory, but we disagree.
The court instructed the jury, "The defendant is guilty of first-degree murder, if the People have proved that the defendant committed murder by shooting a firearm from a motor vehicle. The defendant committed this murder if one, he shot a firearm from a motor vehicle; two, he intentionally shot at a person inside the vehicle. And three, he intended to kill that person."
Obviously, the instruction was flawed in that it referred to "the defendant" as opposed to the actual perpetrator, Salgado. However, that flaw could only have worked to defendant's benefit. Since there was no evidence he fired a gun, the jury could have applied the instruction literally to find this theory of first degree murder inapt.
The more likely scenario is that the jury properly understood the instruction pertained to Salgado's actions in killing Lancaster. After all, the evidence was undisputed that Salgado was the shooter, not defendant. Defendant fears that if the jurors did understand the instruction in this fashion, then it would have permitted them to convict him of first degree murder simply on the basis Salgado intentionally shot from a motor vehicle, without regard to whether he actually intended to assist Salgado in the shooting. That is not the case.
In instructing on aiding and abetting liability, the court explained that to be guilty of a targeted offense, an accomplice must share the intent of the person who actually carries it out. It stated, "Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime." So, before it could convict defendant of first degree murder under the discharging a firearm theory, the jury was required to find defendant shared Salgado's intent to intentionally shoot Lancaster with the intent to kill. Taken as a whole, the instructions properly conveyed this requirement.
VII
We now take up defendant's ineffective assistance of counsel claims. He contends that, by virtue of his plea bargain, Gomez was placed under a strong compulsion to testify in accordance with the prosecution's theory of the case. Therefore, his attorney should have moved to exclude Gomez's trial testimony. We disagree; it would have been a waste of time.
'""In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
It is not uncommon in criminal cases for the prosecution to rely on testimony from an accomplice who has pleaded guilty in connection with the crimes for which the defendant is on trial. However, "when an 'accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendant's conviction [citation], the accomplice's testimony is "tainted beyond redemption" [citation] and its admission denies the defendant a fair trial.' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 594.)
On the other hand, "'an agreement requiring only that the witness testify fully and truthfully is valid.' [Citation.]" (People v. Avila, supra, 38 Cal.4th at p. 594.) No denial of a fair trial will be found where the accomplice remains "free to testify as she wished 'without having to subscribe to any particular version of events [citation]," and the defense is given a "'full and fair opportunity . . . to impeach [the accomplice's] testimony and to argue her credibility to the jury.' [Citation.]" (Id. at p. 593.)
Gomez entered into a formal written plea agreement with the prosecution. Under the deal, the prosecution agreed to recommend that Gomez be sentenced to 25 years in prison, in exchange for Gomez's cooperation in the investigation into the shooting. Such cooperation included Gomez answering all questions to the best of his ability and testifying truthfully in any legal proceedings arising out of the investigation. Emphasizing the need for honesty, the agreement provided, "I understand that, overriding all else, MY MOST IMPORTANT OBLIGATION IS TO TELL THE TRUTH AND TELL ONLY THE TRUTH. At all times, both during the investigation and while testifying in court, I am required to tell only the truth, no matter whether the questions are asked by police officers, investigators, prosecutors, defense attorneys, or judges." Gomez initialed every provision of the plea agreement and signed it along with his attorney.
On March 5 and 6, 2009, the prosecutor and Investigator Estrada interviewed Gomez about the case. At the start of the interview, the prosecutor reiterated to Gomez that his plea bargain could only go through if he was truthful and "a hundred percent honest." In fact, the prosecutor emphasized that was the "most important" aspect of the deal. When the prosecutor asked Gomez if he understood this, he said "yeah." During his trial testimony, Gomez also acknowledged he was required to "testify truthfully" in order to get the benefit of the plea agreement.
Despite all of this, defendant argues that when the prosecutor interviewed Gomez about the shooting, she pressured him to change his story, and that resulted in Gomez conforming his trial testimony to the prosecutor's version of events. Defendant claims that was the only way for Gomez to get the benefit of the plea agreement, but, as we now explain, the record does not bear this out.
During his pretrial interview, Gomez told the prosecutor that Atkins appeared to duck down in the Camaro just before the shooting. Gomez said he did not know if Atkins was just ducking for cover, or if he was reaching for something. But in reaction to Atkins' movement, he yelled out, "I think they're reaching for something." In attempting to ascertain when Gomez made that statement in relation to the shooting, the prosecutor and Investigator Estrada engaged him in the following line of questioning:
"[Prosecutor]: Can you tell which one came first; Atkins ducking or [Salgado's] hand coming out the window (with the gun)?
"Gomez: [Salgado's] hand coming out the window.
"Estrada: [Salgado's] hand is coming out the window before?
"Gomez: Before, cause when he started to turn, he started passing up and his hand's coming out the window.
"Estrada: And that's when Atkins . . .
"Gomez: And Atkins went like, like I guess, now that I think about it, he might have just been ducking because, I mean . . . (unintelligible).
"[Prosecutor]: And I wanna question you about that because um, a lot of times when you say stuff, you're making inferences; you're making your own conclusions and I'm . . .
"Estrada: Shouldn't do that?
"[Prosecutor]: Not so much interested in that as opposed to just describing what you saw; You know, I mean so, that's a perfect example, you know, maybe you're making a conclusion that he was reaching for a weapon, um, or maybe you're not; you're saying he could also [have] been turning, so let's just stick to . . .
"Gomez: Okay.
"[Prosecutor]: What you saw and then we'll leave the rest of that, you know, for the jury[.]"
Of course, we already know that when Gomez testified at trial, he claimed he never saw a gun in the Camaro, and there was never any discussion in his vehicle about anyone in the Camaro having a gun. Gomez did testify he saw Atkins crouch down during the shooting, but he surmised Atkins did so simply to avoid getting hit by gun fire. He did not say, as he did before trial, that it appeared to him that Atkins might have been trying to reach for something.
Defendant argues Gomez changed his story in that regard because he was under a strong compulsion to testify in favor of the prosecution. However, during the pretrial interview, the prosecutor never told Gomez what or what not say. Rather, she simply implored him to tell the truth and advised him to avoid speculating about things he did not actually observe. There is nothing improper about advising a potential witness about such matters.
Moreover, it does not appear that Gomez's trial testimony was materially at odds with what he told the prosecutor before trial. In his pretrial interview, Gomez said that during the chase he yelled out, "I think they're reaching for something," while on the witness stand, he answered "no" when asked if there was any discussion in his truck about the victims having a gun. Obviously, saying the victims were "reaching for something" is not the same thing as having a discussion about the victims having a gun.
In any event, the record shows defense counsel was given wide latitude to explore this and cross-examine Gomez regarding any inconsistencies between his trial testimony and his pretrial interview. The interview was also played for the jurors, so they could compare and contrast it to what Gomez said on the witness stand, in order to gauge his credibility. All things considered, we do not believe there was a legitimate basis for excluding Gomez's trial testimony as being the product of prosecutorial coercion. Therefore, defense counsel was not ineffective for seeking to exclude Gomez's testimony on that basis.
VIII
Defendant avers his attorney was also ineffective for failing to request a limiting instruction regarding the effect of Gomez's plea. Again, we disagree.
During Gomez's testimony, his plea agreement was introduced into evidence, and defense counsel cross-examined him extensively about the agreement in order to undermine his credibility. Defense counsel saw the agreement as proof that Gomez was willing to "sing for his supper" and that his trial testimony was not to be believed. In response, the prosecutor pointed out the agreement was premised on Gomez's promise to testify truthfully. She argued Gomez was credible, despite his willingness to plea bargain. But she did not argue, or even suggest, Gomez's guilty plea had any direct bearing on defendant's guilt.
This is important because "'evidence about the conviction of a [codefendant] is not admissible as substantive proof of the guilt of a defendant.' [Citation.]" (United States v. Mitchell (4th Cir. 1993) 1 F.3d 235, 240.) Were that not the case, the jury in a criminal trial might be inclined to convict the defendant based solely on his association with others. And that would be anathema to the concept of fairness embodied in our criminal justice system. (People v. Cummings (1993) 4 Cal.4th 1233, 1322 [probative value of codefendant's guilty plea was clearly outweighed by the prejudicial impact of the plea]; People v. Leonard (1983) 34 Cal.3d 183, 188-189 [evidence that accomplice had pleaded guilty was inadmissible against the defendant because it invited an improper inference of guilt by association].) However, as explained, Gomez's guilty plea was not used to establish defendant's guilt.
Still, defendant maintains that, out of an abundance of caution, his attorney should have requested the court to admonish the jury not to use Gomez's plea for this purpose. But such an admonishment would not have done anything in terms of overcoming the substantive aspect of Gomez's testimony, which was the pillar of the prosecution's case. In fact, without Gomez's testimony, the jury would not have known the full story about what happened in defendant's vehicle during the chase and how defendant aided in the shooting. That is why Gomez's testimony was important, and that is why the prosecution called him as a witness. The fact he pleaded guilty in the case, while relevant to his credibility, was simply not something the prosecution relied on to establish defendant's culpability. Therefore, it is not reasonably probable defendant would have obtained a more favorable result had his attorney requested a limiting instruction on the effect of Gomez's plea. No Sixth Amendment violation has been shown.
IX
Lastly, the parties agree that, as to one of the attempted murder counts, count 5, the abstract of judgment incorrectly reflects defendant was sentenced to a term of life in prison without the possibility of parole. Because the court actually sentenced defendant to life in prison with the possibility of parole on that count, we will modify the judgment accordingly.
DISPOSITION
The judgment is modified to reflect a sentence of life in prison with the possibility of parole for the crime of attempted murder in count 5. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this modification and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.